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Ringuet v State of Queensland[2019] QDC 91

Ringuet v State of Queensland[2019] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Ringuet v State of Queensland [2019] QDC 91

PARTIES:

LISA ANNE RINGUET

(plaintiff) v

STATE OF QUEENSLAND

(defendant)

FILE NO/S:

D189 of 2014

DIVISION:

Civil 

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

6 June 2019

DELIVERED AT:

Brisbane 

HEARING DATES:

30, 31 July; 1, 2 August ; and 12 October 2018

Final written submissions received from the defendant 8 October 2018, and from the plaintiff 11 October 2018

JUDGE:

Muir DCJ

ORDER:

  1. Judgment for the plaintiff in the sum of $326,312.75.
  1. I will hear the parties as to costs and to that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one (21) days.

CATCHWORDS

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – STANDARD OF CARE – CAUSATION – AS BETWEEN EMPLOYER AND EMPLOYEE – dispute as to liability and quantum – where the defendant is an employer – where the plaintiff is an employee  registered nurse with the defendant – where the relevant duties owed by an employer to an employee are not in issue – where the plaintiff claimed to have suffered a chronic musculoligamentous injury to the lumbar spine and psychiatric injury – where the incident occurred in the Psychiatric Intensive Care Unit and involved a patient – where the patient attempted to escape the Unit and the plaintiff was injured in the process – whether the plaintiff suffered any injury – whether the defendant had breached its duty of care in failing to provide a safe system of work for the plaintiff  – whether the risk of injury to the plaintiff was reasonably foreseeable – whether the injury suffered was caused by the defendant’s breach of its duty

DAMAGES – QUANTUM – whether the plaintiff could obtain general damages for pain, suffering and loss of amenities of life – whether the injury prevented the plaintiff from working full-time – whether any diminished capacity as a result of the injury – assessment of damages for past and future economic loss, superannuation and interest – whether the plaintiff could obtain special damages 

Workers Compensation Rehabilitation Act 2003 (Qld) 

Workers Compensation & Rehabilitation Regulations 2003(Qld)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Brisbane Youth Service Inc v Beven [2017] QCA 211

Camden v MacKenzie [2008] 1 Qd R 39

Czatyrko v Edith Cowan University (2015) 79 ALJR 839

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

Erickson v Bagley [2015] VSCA 220

Farnham v Pruden & RACQ Insurance Limited (ACN 009 704 152) [2015] QDC 141  

Farnham v Pruden & Anor [2016] QCA 18

Findlay v State of Victoria [2009] VSCA 294

Fox v Percy (2003) 214 CLR 118

Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

James v Queensland [2015] QSC 65 

Knott v The Withcott Hotel [2015] QDC 314

Kondis v State Transport Authority (1984) 154 CLR 672

Lusk v Sapwell [2012] 1 Qd R 507

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 

McGrory v Medina Property Services Pty Limited [2017] QCA 234

McLean v Tedman (1984) 155 CLR 306

Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319

Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd & Ors [2015] QSC 271

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Perkovic v McDonnell Industries Pty Ltd (1987) 45 SASR 544

Todorovic v Waller (1981) 150 CLR 402

Turner v South Australia (1982) 42 ALR 669

Qantas Airways Limited v Fisher [2014] QCA 329

Queensland Corrective Services Commission v Gallagher [1998] QCA 426

Rands v McNeil [1955] 1 QB 253 at 257

Reck v Queensland Rail [2005] QCA 228

Soogyung Kim v Xiaoxia Liu & Anor [2017] QDC 167

Southern Cross Mining Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457

Wolters v The University of the Sunshine Coast [2012] QSC 298

Woolworths Limited v Perrins [2015] QCA 207

Wyong Shire Council v Shirt (1980) 146 CLR 40

Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232

Vairy v Wyong Shire Council (2005) 223 CLR 422

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

COUNSEL:

M O'Sullivan for the plaintiff

K Howe for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

McInnes Wilson for the defendant 

Introduction

  1. [1]
    The plaintiff is a 52 year old woman who was employed by the defendant as a registered nurse in the Acute Young Adult Mental Health Unit at a division of the Gold Coast Hospital at Robina.  On 9 August 2012 in the course of performing her duties at the hospital, the plaintiff opened the nurses station door to walk into the locked Psychiatric Intensive Care Unit (“the PICU”), when a young male Patient with a known history of physical aggression and a high risk of escape, attempted to barge his way out through the door.  In order to avert the escape, the plaintiff pushed back against the force of the door until assistance arrived.  She contends that this Incident resulted in her suffering an injury to her lumbar spine and a consequential psychiatric injury and necessitated her re-training as a psychologist, with an inability to work full-time. The plaintiff seeks an award of damages against the defendant for failing to maintain a safe system of work. Both liability and quantum are in dispute.

The pleadings

The plaintiff’s pleaded case

  1. [2]
    By her statement of claim,[1] the plaintiff alleges that around 10.00am on 9 August 2012, she was on duty in the PICU, working on the computer from the nurses’ station, when she observed the Patient sitting on the breakfast bench inside the secure area. At that point, the plaintiff decided to attend to her duty of clearing the rubbish in the PICU.  The other nurse on duty at the time, [Nurse White] was in the medication room in the PICU at the time. The plaintiff's intention was to walk through the PICU door to the barn door of the medication room to tell Nurse White what she was doing. 
  2. [3]
    The plaintiff further alleges that she looked through the glass panel of the PICU door prior to entering the locked unit.[2] But as she turned the PICU door handle in an inwards motion, the door was violently pushed with significant force from the other side, by the Patient who was “ hiding” behind the door. The plaintiff pushed back with force on the door but the Patient had one hand around the door and was pushing the door forcefully. The plaintiff was unable to take her hands off the door. She could not activate her personal duress alarm which she wore on her belt as her hands were occupied. The plaintiff called out for help twice before Nurse Scott Calvird and Nurse Jun Ozawa approached her from behind and placed their hands against the door in an effort to keep it from opening. The plaintiff was trapped between the door and the two nurses before extricating herself.  The other two nurses were then able to open the door and initiate a takedown of the Patient.

After the Patient was subdued, he was removed to a seclusion room in the Child and Youth Psychiatric Unit [as the seclusion room in the PICU was occupied] where he was administered medication. 

  1. [4]
    The plaintiff’s pleaded case is that as a result of the incident she sustained “a psychiatric injury and a chronic musculo-ligamentous injury to the lumbar spine”.[3] At trial it was uncontroversial that the psychiatric injury is not ongoing and was secondary to the lumbar spine injury.
  2. [5]
    The plaintiff alleges the defendant was negligent and in breach of its duty of care to her. The claim is also pleaded as a breach of the contract of employment between the parties but there is no contention of there being any difference between the tortious duty of care owed and the co-existing implied contractual term requiring an employer to take reasonable care for the employee’s safety.[4] No submissions were made by either party about the contractual claim. It follows that it is unnecessary to consider that claim further. 
  3. [6]
    The plaintiff’s statement of claim pleads some twenty acts and omissions a reasonable employer would have taken to avoid the injury to her.[5] At the end of the trial the plaintiff’s case was confined to the following ten steps:[6]
    1. (a)
      “The plaintiff should have been provided with clear instructions [guidelines or protocols or risk assessments] as to the safe way to enter the PICU;
    2. (b)
      The plaintiff should have been instructed to ensure and/or request patients back away from the nurses station door when staff entered the unit;[7]
    3. (c)
      The plaintiff should have been instructed to ensure that she never entered the unit prior to communication of her intention to do so with the other nurse on

duty in the PICU and that the other nurse observe the entry to ensure that the patient could not attempt to escape during the entry;[8]

  1. (d)
    The plaintiff should have been instructed to ensure that she worked in unison or pairs with the other nurse on duty so that they were both present when entry to the unit was undertaken by one or both nurses only when they both agreed that entry was safe and no patient was in a position to attempt escape from the unit;[9]
  2. (e)
    There should have been a system in place that ensured two nurses but more appropriately and reasonably in the circumstances, a nurse and a strong male nurse or security officer or assistant [the plaintiff and a co-worker] were present at the nurses station door when accessing the locked unit of the PICU or, at the very least, to ensure a system where the two nurses [or nurse and co- worker] could and would observe each other, from their respective positions, at the door and in the medicine room, so that there was an agreed assurance between them that the person entering the locked unit, the strong male co- worker or security officer as vanguard, could do so without the risk that a patient would or could attempt an escape from the locked unit and in doing so pose a risk to the safety of staff, including the plaintiff;[10]
  3. (f)
    The plaintiff should have being instructed to use the convex mirror and trained in its use;[11]
  1. (g)
    The above proposed instructions and system should have been implemented, monitored and enforced by the defendant prior to the subject incident;[12]
  2. (h)
    The patient should have been placed in seclusion pending further review by professional psychiatrists because of his observed behaviour and the risk assessment completed at 3.00am on the morning of his attempted escape;[13]
  3. (i)
    A second convex or other mirror should have been placed opposite the nurses door so that staff could look through the glass window in the door and observe what was outside the door and in the corridor;[14] and
  4. (j)
    There should have been CCTV monitors at the nurses’ door allowing staff at the door to see whether entry could be made without the risk of an attempted escape by a patient.”[15]
  1. [7]
    The plaintiff claims amounts for general damages, past economic loss with interest [and past superannuation], future economic loss [and future superannuation], past paid and gratuitous assistance, future paid and gratuitous assistance, and various future expenses.[16]  

The defendant’s pleaded case

  1. [8]
    The relevant duties owed by an employer to an employee are not in issue. But this concession is qualified by the defendant’s pleaded case to the extent that any duty was predicated upon the exercise of reasonable care and is not absolute “in truth and in fact”.[17] 
  2. [9]
    By its defence the defendant contends:[18]
    1. (a)
      Due to her experience, the plaintiff was aware of the need to ensure proper care was taken when accessing the PICU and there was no requirement for any further system to be implemented to monitor the Patient as the defendant already had systems in place;[19]
    2. (b)
      The plaintiff was in the best position to inform her co-worker, Nurse White, when she was entering the PICU; the plaintiff failed to wait for Nurse White before entering the unit; there was no requirement for any further system to be implemented as the defendant already had adequate systems in place; there is no evidence to suggest that even if Nurse White was aware the plaintiff intended to access the unit it would have prevented the incident occurring;[20]
    3. (c)
      As her employer, the defendant had relevant protocols and training in place to address the risk of moving from the nurses station to the locked unit; that the plaintiff was an experienced nurse who had previously worked in the PICU and was aware of relevant protocols; that no further protocols would have prevented the incident from occurring;[21]
    4. (d)
      The plaintiff caused or contributed to her own injuries by failing to check, or adequately check, that patients were not in the locked area by using the glass panel/windows, parabolic chrome mirror, failing to observe the Patient within the locked area before entering through the nurses station door and/or checking and/or ensuring that the entrance was clear; failing to follow the protocol of ensuring and/or requesting patients to back away from the nurses station door; attempting to enter the unit to notify a nurse and/or co-worker that it was the plaintiff’s intention to collect rubbish from the unit, when this would have involved entering the PICU area without another nurse and/or co-worker being present: and failing to use the secured area to access the medication room in order to notify the nurse of her intention to collect rubbish, which would not have involved entering the PICU area.[22]
  3. [10]
    The defendant’s liability case can be summarised as follows:
    1. (a)
      Whilst a duty existed to the plaintiff, there was no breach of that duty because the patient’s act was an impulsive, unpredictable act and there was no act on the part of the defendant exercising reasonable care that ought reasonably have been taken, that would have avoided the Incident; 
    2. (b)
      The case of the plaintiff is one looking through the prism of hindsight informed by the Incident having occurred rather than examining the duty issue prospectively;[23]
    3. (c)
      The plaintiff cannot establish that if any of the steps she says ought to have been taken by the defendant were taken it is more likely than not that the Incident would have been avoided;  
    4. (d)
      The plaintiff’s pleaded case does not establish and properly plead causation, so it must fail.  
  4. [11]
    As with liability, the parties are diametrically opposed about the quantum of this case. The defendant admits the plaintiff suffered a musculo-ligamentous injury to her lumbar spine but denies that it is chronic, ongoing or a result of any breach of its duty.[24] Otherwise the defendant challenges the plaintiff’s claims under each head of damage on the basis that it is excessive and contrary to the evidence.   The competing positions of the parties are analysed and discussed later in these Reasons under the heading Quantum.  

The plaintiff’s circumstances prior to the Incident

  1. [12]
    The plaintiff was aged 46 at the time of the injury and was 52 at the time of the trial.  She is diminutive in height, standing at five foot two inches. At the time of the Incident the plaintiff weighed 50kg and was active and fit.  She enjoyed swimming, walking, camping, boating activities and going to the beach and the gym. She had no history of back, leg or nerve pain or injury. She accepted she had past psychological issues but denied that these issues had any impact on her performance as a nurse.[25]  
  2. [13]
    From her early to mid-twenties the plaintiff undertook office work.  She then travelled before studying and becoming a naturopath following the birth of her son at 27.   Later, the plaintiff was employed for about 4 years as a graphic designer in the art department of a business purchased by her father. She was made redundant when that business was sold but she continued to do some freelance work for the company from home.  
  3. [14]
    In 2007 the plaintiff decided to study nursing full-time at Griffith University on the Gold Coast.  In January 2010 she obtained a graduate position as a registered nurse with Queensland Health, working solely in mental health at the hospital.   Upon completing the program in 2011, the plaintiff obtained a permanent placement in the PICU at the hospital.  
  4. [15]
    At the time of the Incident, the plaintiff had been working in the PICU for just over a year. This role was part-time and required the plaintiff to work four days a week.[26] The plaintiff was often the nurse in charge, and she “felt that [she] was doing really well.” [27]She had also enrolled in a 12 month Masters course in mental health which she planned to undertake while increasing her work hours to full-time and with the intention of becoming a clinical nurse.

Credibility

  1. [16]
    The defendant submitted that a number of aspects of the plaintiff’s evidence reflected poorly on her credibility. For example, her answers about her physical capabilities in job applications completed after the Incident.  In one application, the plaintiff’s response to a questionnaire was as follows:[28]

“Do you have any health-related issues, disabilities, injuries or conditions that may impact or affect the safety of either yourself or others in the workplace, if you were to undertake the job you are applying for? YES

Have you, in the past, or are you presently suffering from any of the following:

 Back injury:      No

 Shoulder or Neck injury:  No

 Knee or Ankle injury:   No”

  1. [17]
    In another application, the plaintiff responded to the question “do you have any restrictions performing the following physical functions” as set out below:[29]

 “1.       Sitting       No

  1. Walking      No
  2. Pushing       No
  3. Pulling       No  tight lower
  4. Crouching      No  back muscle
  5. Kneeling   No 7. Standing   No 8. Bending    No 
  1. Gripping/Using your hands  No
  2. Lifting       No
  3. Turning your head    No
  4. Raising your shoulders/arms  No
  5. Do you have any pre-existing illness/injuries that may be affected by the services you intend to provide? No”
  1. [18]
    I accept that on one view these responses do not reflect well on the plaintiff. They are inconsistent with what the plaintiff says was the true position at the time and show that she was willing to be less than transparent about matters relevant to her employment. But on another view, they are equally consistent with a finding that the plaintiff was hardworking and determined to get herself back into the workforce whilst trying to overcome her injuries.  
  2. [19]
    My overall impression of the plaintiff was that she was generally a credible and honest witness. To her credit, she was willing to make concessions when unable to recall matters that might have assisted her case. For example, although it was her practice to usually do so, she conceded that she could not specifically recall whether she looked through the glass panel into the PICU before she opened the door on the day of the Incident and she also accepted she did not usually look at the chrome ball before entering the PICU. But there were also occasions that the plaintiff’s evidence was not supported by the objective facts and other evidence which I accept.  For example, as discussed below I do not accept that the plaintiff was not given an orientation when she started working at the PICU.  I also found many of her responses about the written records, such as the use of progress notes and her lack of apparent knowledge about any of the guidelines and policies in evidence, to be evasive and unconvincing.  There were also crucial aspects of the plaintiff’s evidence relevant to quantum that I do not accept. For example, there was no evidence that the plaintiff had ever been engaged in full-time employment – yet her claim for future economic loss includes a loss of opportunity to work full-time.  
  3. [20]
    In my view, a careful assessment of the plaintiff’s evidence is required.[30] In carrying out such a task, her evidence has been assessed objectively having regard to the whole of the evidence before the Court and upon a consideration of where the balance of probability lies on the basis of that analysis.[31]    

Liability

  1. [21]
    The issue of liability involves a determination of the following questions:
  1. (a)
    What was the set-up of the PICU? 
  2. (b)
    What were the practices and policies for working in the PICU?
  3. (c)
    How did the Incident occur? 
  4. (d)
    Was any injury caused by the Incident and if so what injury?
  5. (e)
    What was the scope of the duty of care owed by the defendant to the plaintiff?
  6. (f)
    Was there any breach of the defendant’s duty of care? In particular:
    1. Was the risk foreseeable and “not insignificant”; and 
    2. What would a reasonable person in the position of the defendant have done in response to that risk; and 
    3. If there was a breach, did it cause the plaintiff’s injury?

What was the set-up of the PICU

  1. [22]
    It was uncontroversial that The Acute Young Adult Mental Health Unit of the Gold Coast Hospital at Robina comprised two sections.  One section was open sided and considered less risk.  The other side [the PICU] was a locked unit that accommodated acute mental health patients.
  2. [23]
    The PICU comprised an open side where the nurses’ station was situated behind a large clear glass window that overlooked a communal area in the locked area. A wooden doorway into the secured area was located about two metres to the right of the nurses station [when facing the locked area]. This door was approximately 90.5 centimetres wide and opened inwards by using a handle [although the locked unit side could only be opened by the use of a security pass].  The door had a narrow 15cm wide rectangular clear glass panel recessed within it.[32]  A duress button was located on the left hand side of the door. 
  3. [24]
    The secured area of the PICU comprised five bed rooms [four with ensuites and the other a secure seclusion room] and a communal area with a television, lounges, breakfast bar and a door leading to an outdoor courtyard. Inside the locked side, a medication room with a barn style door was located about three metres from the PICU door.[33]
  4. [25]
    Dr Tony Zalewski, a risk management consultant with over 20 years’ experience in conducting large risk assessments and the training of operational and security staff including in the healthcare sector, was called by the plaintiff. Dr Zalewski provided a written report and was cross examined at trial.[34] His evidence about the PICU set-up was:[35]
    1. (a)
      The PICU opened in 2011 and was not purpose built and there were issues around design, equipment and workplace activity that were changed. 
    2. (b)
      The nurses’ station within the PICU was relatively small with one secured door between it and the patient’s common area of the PICU.  A red coloured sign on the secured door warned not to open the door if entry was not clear. It was accepted that this sign was introduced after the Incident. 
    3. (c)
      Adjacent to the secured door was a fixed duress alarm button positioned on the partition [small wall] that was fixed to the secured door wall and ran back into the nurses’ station.  A glass barrier provided clear lines of sight between occupants of the nurses’ station and those positioned in some areas of the common area of the PICU.  
    4. (d)
      A chrome ball [parabolic or convex chrome mirror] was positioned on the ceiling adjacent to the nurses’ station and provided some vision of the common area including the area outside the secured door.  The convex mirror was not visible once a person was standing at the secured doors.  
    5. (e)
      There were no CCTV cameras erected in any of the areas adjacent to the nurse’s station.  The medications room door was located in the vicinity of the secured door, but not in a clear line of sight.  There was a CCTV monitor in the nurses’ station, but this provided images of the seclusion room only and there were no CCTV cameras placed anywhere in the unit other than the seclusion room to monitor activity or the location of the patients.  
    6. (f)
      Staff working in the PICU were required to work in pairs, provided with duress technology including fixed alarms at various points in addition to a personal duress alarm that was to be particularly worn on the belt and were required to complete and maintain competence through an aggressive behaviour management course. 
  5. [26]
    I accept Dr Zalewksi’s evidence that it was a valid design consideration that the glass strip on the PICU door was narrow. This was to protect and avoid breakage.[36] But I do not accept Dr Zalewski’s comments that the PICU was not purpose built and there were issues around design, equipment and workplace activity that were changed.   This broad observation is in my view mere speculation.  In his oral evidence, Dr Zalewski conceded that the statement in his report that the PICU was not purpose built was based solely on what he had been told by the plaintiff.  In my view, this statement was without any reasonable foundation and flies in the face of the documentary evidence of the design considerations for an adult acute mental health inpatient unit in evidence.[37]  
  6. [27]
    Jacqueline Hawkins was called by the defendant. Ms Hawkins was the project director for the construction and expansion works carried out to the Psychiatric Unit at the Robina Hospital. This included the construction and design of the PICU. Her evidence, which I accept, was that the design and construction of the PICU was a “huge process”.[38]  It involved consultation with architects, engineers, builders, a design team, clinical and expert users, the Health Service Occupational Health and Safety Team and a group of expert users and relevant unions.  Her uncontroverted evidence was that the construction of the PICU was based on Queensland Health Mental Health design guidelines and carried out in accordance with the Australian Health Facility Guidelines which she described as “reasonably prescriptive”.[39]   

What were the practices and policies for working in the PICU?

  1. [28]
    The plaintiff described the usual practice in the PICU as follows:
    1. (a)
      At the commencement of the shift, the nurses coming on duty would receive an oral and written handover as follows “the shift is about to come off, we go into a room and they will give us information that they [the nurses who had been nurses on duty] feel is required or tell us what happened on their previous shift”.[40]  This written handover document was subsequently destroyed;[41]
    2. (b)
      Nurses are required to work in pairs in the PICU. But this did not mean they had to be together all of the time.  As long as one nurse was in one of the PICU areas and was aware of what the other nurse was doing, that was fine [for example one could be in the medication room while the other remained at the nurses’ station looking into the PICU];   
    3. (c)
      Duties included having to “do medications” which entailed going into the medication room and dispensing medications to patients who would come to the barn door of the medication room to take their medication;[42]
    4. (d)
      Breakfast would arrive on trays with plastic cutlery and glasses and would be taken into the PICU by one of the two nurses who were on duty;
    5. (e)
      Working on the computer, such as opening a blank page and writing up progress notes to add to as the day continued and otherwise catching up on paperwork;[43] and
    6. (f)
      The nurses were not required to assist the patients as they washed but they did direct them if they were doing something that they should not have been doing.[44]  [29] It was uncontroversial that the types of patients admitted to the PICU were acute and often aggressive mental health patients.  The plaintiff was given some training in dealing with such patients. From 15 February 2010 until 19 February 2010, she successfully completed a Certificate III Course in Aggressive Behaviour Management.[45] This training entailed understanding patients’ rights, and also practising “take downs and so forth.”  Otherwise I accept that the plaintiff did not receive any further or specific training about how to deal with the aggressive nature of some of the patients in the PICU.[46] 

Written guidelines and polices in evidence 

  1. [30]
    There was evidence that the defendant had in place an orientation program for new nurses, and some systems and guidelines in place for working in the Acute Young Adult Unit and the PICU.  The Clinical Staff Orientation Document is 35 pages long and replete with information about working in the Acute Young Adult Unit.[47] This document

provides for the Clinical Staff Responsibilities as follows:[48]

13.11 Clinical Staff Responsibilities

  • To ensure that all consumers are treated respectfully, professionally without delay and with confidentiality.
  • All staff working in Acute Young Adult Unit will be orientated to the environment, the unit’s guidelines and safety systems in place.
  • Staffs are required to wear clothing and footwear appropriate to the unit.
  • Personal duress alarms will be worm [sic] at all times by staff working in the unit and Staff must inform each other of their whereabouts prior to isolating themselves with consumers.
  • Not to use the PICU main door.
  • Continuous close monitoring of consumer’s mental state, whereabouts, behaviour and report any concern to the nurse in charge of the shift and also to document in the consumer’s chart.
  • Ensure each consumer’s recovery plan is developed and reviewed in partnership with consumers, carers (only with consent from consumer) and other service providers.
  • To communicate any change in consumer’s management/recovery plan/Risk Assessment to the CN/Nurse in charge.
  • Developing rapport and therapeutic relationship with consumer; assisting with social or clinical interactions. Assess and provide a broad range of activities or discussion or simply being with consumers.
  • Staff are not to engage in non-clinical activities that do not include consumer such as reading a book or watching television. Staff may use reading materials or television as a tool to normalise consumer’s behaviour or establish rapport.
  • Clear documentation of mental state, behaviour, risk, any PRN medication used and details of acute recovery prevent care delivered each shift.”
  1. [31]
    Under the heading “Clinical Handover” it sets out that “a clinician handing over the care of a consumer is responsible for ensuring that adequate information is given to maintain continuity and safety of care.”[49] Amongst other things it also relevantly stated that a handover will include: 

“Sufficient detail of relevant information and identifies issues and concern to the nurse accepting care; Sufficient explanation of complex situations or to meet the needs of new or less experienced staff or students; [and] Levels of agitation and prior management of same.”[50] 

  1. [32]
    The PICU Management Procedure included the following relevant section:[51]Staff safety:[52]
  • All staff working in PICU will be orientated to the environment, the PICU guidelines and safety systems in place.
  • Personal duress alarms will be worn at all times by staff working in/ entering the area.
  • One staff member will also carry a dect phone so that they can communicate directly with the Clinical Nurse.
  • Patients will eat their meals in the dining area.
  • Plastic/paper plates and plastic cutlery are to be used. All cutleries are to be accounted for at the end of each meal before the meal trays are removed.
  • Staff working in the PICU must ensure that they communicate with each other to keep each other safe. This means they must inform each other of their whereabouts prior to isolating themselves with patients.[53]
  • To avoid distraction staff are not to engage in non-clinical activities that do not include the patient such as reading a book or watching television.  Staff may use reading materials or television as a tool to engage the patients to establish rapport.
  • Night staff visual observations should be conducted in pairs.” 
  1. [33]
    The defendant was unable to produce the PICU guidelines referred to in the Staff Safety section.[54]
  2. [34]
    The PICU Management Procedure identified under the heading Staff Health that working in the PICU can be a demanding role with the potential to increase levels of stress and fatigue identifying that unit staff should not be subjected to long runs of consecutive shift work in the PICU.[55]  It also set out the Responsibilities of Clinical Staff in the PICU, for a Clinical Handover and for Staffing as follows:

Responsibilities of clinical staff in the PICU:

  • Monitoring of patient’s mental state, whereabouts, behaviour and report any concern to the nurse in charge of the shift and document this in the patient’s notes. 
  • To communicate any change in management/recovery plan to the CN/Nurse in Charge of the shift and update Risk Assessment in the patient’s chart. 
  • Developing rapport and a therapeutic relationship with the patient; assist with social & or, clinical interactions. Assess and provide a range of activities, discussion or simply be present with the patient. 
  • Patients who observe, or are personally exposed to critical incidents, will be offered debriefing and counselling as soon as practical after the event. 
  • Allocated nurse – to attend and assist with patient’s activities of daily living (ADL’s) and is responsible for attending to PICU patient’s private laundry during (13:30 – 15:00 hrs). Also to provide a verbal handover to the relieving nurse, noting potential risk(s). 

Clinical handover: 

  • A clinician handing over the care of a patient is responsible to ensure that adequate information is provided to enable continuity of care. This is carried out at the change of shift. 
  • The handover is to be patient focused, structured and action orientated. Handover will include: 
    • Current patient presentation, significant changes including mental state, risk assessment, response to treatment, physical conditions requiring monitoring and pending appointments. 
    • Present medication issues.
    • Level of nursing observation. 
    • Any visitor(s) present. 
    • Behavioural management agreements made with patients. 
    • Any item in use by a patient that requires supervision and removal when finished with and any details relevant to safety i.e. razors. 

Clinical Nurse/Nurse in charge: 

  • Staffing: Clinical Nurse/nurse in charge of the shift is responsible for assessing staffing requirements with consideration of: 
    • The acuity of the PICU. 
    • The required level of skill, knowledge & experience of staff. 
    • Managing the day to day management of PICU. 
    • Recovery Plan/treatment needs of the patients. 
    • Managing the risks of each patient within the PICU. 
    • Meeting the goals of the Treating team as documented in the patient’s clinical notes/ recovery plan. 
  • Any staffing concerns are to be discussed with NUM during office hours, or the NSU/HNC after hours. 
    • Refer also to additional staff resource guide (Procedure No: GCDPRO 0865v1)”
  1. [35]
    Thazin Pyone was the Assistant Director of Nursing, Mental Health at the hospital. She worked in the PICU since it first opened in 2011 and was involved in the discussions regarding the pros and cons of the design of the unit.  Nurse Pyone’s evidence was that she created a Clinical Staff Orientation document in the “2010s”[56] and that when the plaintiff first started, she spoke to her about the document and went through it with her.  Her evidence was that the plaintiff was given a copy of the Clinical Staff Orientation document and that there was a hard copy at the unit, nursing station, for staff use. Nurse Pyone’s evidence was that the plaintiff assisted her with orientating new people to the PICU. 
  2. [36]
    The plaintiff could not recall the Clinical Staff Orientation Document and denied that Nurse Pyone gave her this document in the first couple of weeks after she started.[57] She also could not recall the PICU Management Procedure, a document that she may not have seen for “many, many years”.[58] The plaintiff could not recall being shown any documents at all and she did not see it as her role to familiarise herself with the documents when going to a new unit. Her evidence was that it was an extremely fastpaced unit and she did not have time to sit down and peruse documents – although she was not sure whether such documentation was kept at the nurses’ station.[59] Nurse Anne O'Donovan gave evidence on behalf of the plaintiff at trial. She was employed to work in the PICU for approximately eight months from March 2012 until she resigned in September 2012.[60] Nurse O'Donovan could not recall the training and orientation she received when she started working in the PICU or the Acute Young Adult Unit and she too could not recall, as was suggested to her under cross examination by the defendant’s counsel, that a copy of the PICU Management Procedure was kept in a folder at the nurses’ station.
  1. [37]
    I accept that the unit may have been busy at times, [although there was no evidence about how busy it was on the day of the Incident] and that the nurses and relevantly the plaintiff may not have always had time to sit down and familiarise or refresh themselves with the documentation located at the main nurses desk, or as was suggested to the plaintiff, on the website.  But in my view the plaintiff played down her knowledge of any written guidelines and instructions. In my view the plaintiff was unreasonably defiant in her refusal to accept she may have been given such documentation.   On any objective view of all of the evidence the plaintiff was a hardworking, diligent and well-respected nurse. She was also a studious woman having completed a number of different courses and university studies – achieving excellent grades in the process. It is highly unlikely in my view that she would not have familiarised herself with the relevant paperwork relating to the PICU and her job overall. That she knew of the relevant guidelines and protocols is supported by my finding below that to the extent they existed the plaintiff followed them.    
  2. [38]
    It follows that I prefer the evidence of Nurse Pyone over that of Nurse O'Donovan and the plaintiff on this issue. I find that the plaintiff received an orientation when she started work in the PICU and that at some point she had received and read the PICU Management procedure. I also accept Nurse Pyone’s evidence that the plaintiff assisted her on occasions with the orientation of other nurses in the PICU. In my view this evidence is consistent with the plaintiff’s own reflections that she thought she was doing well and also with the fact she was ambitious to move forward in nursing having enrolled in a Masters in mental health with a view to becoming a clinical nurse.    

Pairing

  1. [39]
    Nurse O'Donovan’s evidence about training to work in the PICU was that you needed to work in pairs, but she could not recall any specific training as to how that pairing would work - apart from letting each other know where you were and trying to keep an eye on each other.  She explained that that wasn’t always possible because sometimes one person would have to be in the office and another person in a bedroom or having to get medication.  Her evidence was that if one nurse was in the nurses station and the other in the medication room, they were both still within the PICU.[61] 
  2. [40]
    Ingrid Wood, a registered psychiatric nurse, gave evidence on behalf of the plaintiff.  She had worked in mental health since 1988. From April 2011 until she resigned in

March 2014, she was employed fulltime in the PICU. She gave an example of pairing as someone being in the medication room and someone else in the nurses’ station.[62] 

  1. [41]
    Nurse Calvird who was the acting nurse shift manager for the Acute Young Adult Ward at the time was called by the defendant. He accepted this role entailed managing the PICU staff.[63] He also accepted that there were not any written instructions advising staff as to how they might enter the PICU locked section through the nurses’ door. Although he said there might be something in the orientation manual for the PICU – but he was not familiar with this document.  
  2. [42]
    Nurse O'Donovan’s evidence about the benefit to patients of nurses being able to go into the PICU [which I accept] is most instructive and consistent too in my view with how the PICU operated at the relevant time:[64]

“Of course it’s therapeutic on occasions, but there’s also got to be, and particularly those kind of PICU areas and acute areas, a balance with regards to safety, both the consumers and staff.  So yes, you would interact to observe, to calm things down, for lots of other things, assist with showering, lots of different things, but yeah, there’s – that then has to be balanced with, yeah, other things like safety and note writing and answering phones and …”  [Emphasis added]

  1. [43]
    Counsel for the defendant accepted that Exhibit 1 contained all of the guidelines and policies of relevance for the trial.[65] On the basis of the plaintiff’s description of her usual practice in the PICU, I am satisfied and I find that she carried out her duties in conformity with these guidelines and policies.  Counsel for the defendant also conceded that there is no suggestion that the plaintiff was in breach of some “aspect of it”.[66]

Use of the chrome ball

  1. [44]
    Whilst there was no mention of it in any of the policy and procedure documents in evidence, it was uncontroversial that there was a chrome ball [parabolic or convex chrome mirror] located on the ceiling adjacent to the Nurses Station [on the secure side of the PICU] and this mirror provided some vision of the common area including the area outside the secured door [on the secured side]. 
  2. [45]
    The evidence was confusing as to where this chrome ball could be viewed. 
  3. [46]
    Nurse Diana Grice a registered mental health/psychiatric nurse and the director of medicine for the Gold Coast Mental Health and Specialist Services was called by the defendant.  Nurse Grice was not based at the hospital but was involved with the commissioning of the PICU there. This included attending meetings once a week to resolve any issues that came up.[67] Nurse Grice’s evidence was that the chrome ball was moved to its location at the time of the Incident after some concerns about visibility behind the nurses’ entry into the PICU.  She agreed under cross examination that the best view of the chrome ball was from the nurses station and that the further you move from it the less you can see in the mirror.[68] I accept this evidence.
  1. [47]
    Nurse Pyone’s evidence was that the convex mirror was changed from its original position to an area where the staff could see “every hidden area of the area entering the PICU”.[69]  Nurse Pyone explained the protocol to enter the PICU to be: “I look at the chrome mirror, then I look at the other side of the glass, of the door, because there’s the glass through to the door as well, you can see every area of anybody hiding or anybody standing.”[70]
  2. [48]
    Nurse Pyone’s evidence was that staff are told about how to use the mirror on orientation and that she reminded staff about the mirror when they come in for the shift.  Nurse Pyone’s evidence was that prior to the Incident she had a discussion with the plaintiff about using the convex mirror. Like a number of issues about policy and procedure within the PICU the plaintiff could not recall that Nurse Pyone had mentioned to her about checking the chrome ball for people behind and near the door. I accept Nurse Pyone’s evidence that she told the plaintiff to use the chrome ball but I do not know what was said and to what extent the use of the chrome ball was pressed.  
  3. [49]
    It was suggested to Nurse Wood that the chrome ball had been moved closer to the secured door prior to the Incident, but she could not recall when the chrome ball had been moved. She accepted that there were discussions and that the nurses wanted it moved so you could see if you looked into it just outside the secured door.[71]  But in Nurse Wood’s opinion the image was not very good. It was blurry. Although she accepted that you could still see a distorted image and that you would check the chrome ball as a matter of common sense.[72]
  4. [50]
    It was suggested to the plaintiff under cross examination that even before she got to the PICU door she could have checked the chrome ball to see if anyone was near the secured door. The plaintiff’s response was that this would have slowed her down and it meant she would have been taking her eyes off patients.[73] 
  5. [51]
    In any event, it was not the practice of the plaintiff to use this chrome ball. In her view it gave a distorted view of outside of the secured door “if you’re standing in the right place.”[74] Although it was not clear on the evidence where that right place was. 
  6. [52]
    Nurse Ozawa’s evidence was to the effect that he used the chrome ball from the PICU door entrance. But it was not clear from his evidence exactly where he was positioned when he did this.  His practice was to check the chrome ball and the glass window [which I infer was the panel on the PICU door] when he was at the PICU door before he would open the PICU door.[75] He accepted that you could not see facial expression using the chrome ball but his evidence was that he could identify that a patient was in sight and the location of the patient.[76] 
  7. [53]
    Nurse O'Donovan agreed it was important before going into the PICU, given the unpredictability of the patients, to check through the glass panel at the nurses’ station, the glass panel on the door and the chrome mirror and that you probably automatically did those things.[77] It was not clear from her evidence where she viewed the chrome ball from.
  8. [54]
    Dr Zalewski conducted a site inspection of the PICU in September 2014 and he took a number of photographs which were annexed to his report. His opinion was that the chrome ball mirror was not visible once a person was standing at the secured door.[78]  It is not clear how he reached this view and the photographs do not help in resolving the issue.
  9. [55]
    Having considered all of the evidence about the location and use of the chrome ball, I am satisfied on the balance of probabilities that the chrome ball could be accessed standing a few steps back from the PICU door, looking through the nurses station glass window just adjacent to the wall between the nurses station at the PICU door and looking to the ceiling in the secured section. I find that it provided a distorted image of a person located near the PICU door on the secure side of the PICU. 
  10. [56]
    I accept the plaintiff’s evidence that it was not her practice to use this chrome ball because it gave a distorted view. I also accept the plaintiff’s evidence that there was no formal instruction that this ball must be used before entering the locked area of the PICU.  The plaintiff’s evidence is consistent with other evidence from Nurse O'Donovan which I accept that she did not rely on the chrome mirror because its clarity and coverage was not great and that she did not receive any instructions in writing or orally about how to use the mirror.[79]  It is also consistent with the evidence of Nurse Calvird which I accept, that he did not give staff or the plaintiff any written or specific instruction to use the chrome ball.  He thought it was “pretty sort of self-explanatory”.[80]    
  11. [57]
    It follows and I find that there was no consistent system or policy in place about the use of the chrome ball at the relevant time. In my view and as discussed further below, the plaintiff cannot and ought not to be criticized for not using it in the circumstances of this case.

How did the Incident occur?

  1. [58]
    On 9 August 2012, the plaintiff commenced her shift in the PICU at 7.00 am [she was rostered on until 3.30 pm with Nurse Bettina White].[81]  
  2. [59]
    Counsel for the plaintiff opened the plaintiff’s evidence stating that when the plaintiff came on duty at 7.00am in the morning: “she says she received as part of the systems a piece of paper which is a handover information sheet”.[82]  But in her evidence in chief the plaintiff could not recall a handover being given on 9 August 2012.  
  3. [60]
    The progress notes from the shift prior to the plaintiff’s [on 9 August 2012], include a note that a risk screening tool of the Patient was completed by nursing staff at 3.00am drawing attention to the Patient’s impulsivity, anger, cognition, supporting violence, history of violence, recent threats or other aggressive actions/thoughts, history of substance abuse and psychotic symptoms.[83] The overall risk assessment summarised the Patient’s risk of aggression and absconding as high.  The registered nurse on duty recommended a further risk assessment.[84]  
  4. [61]
    The plaintiff’s evidence was that when she commenced her shift she could not recall receiving any information about the Patient or being told that an incident had occurred earlier that evening or of any need to take extra precautions with the Patient.   It was not her practice to check the progress notes from the shift before.[85] She was “not sure who did the handover”.[86] This response is consistent with the evidence that a handover was given.  Nurse Ozawa explained the purpose of a handover document at the end of the shift to be to inform the next staff member of any concerns including whether the patient was at risk of aggression, absconding, self-harm and suicide. It included the patient’s name and diagnosis.[87]
  5. [62]
    Given the evidence was that the usual practice was for a handover to occur, I accept on balance that a handover occurred on 9 August 2012 – but the extent of the handover is a far more difficult finding to make.  
  6. [63]
    There is a dearth of evidence about relevant matters that would have assisted me in understanding and to make findings about what happened on the day leading up to the Incident. 
  7. [64]
    The actual handover document from 9 August 2012 was not in evidence as it was destroyed [as was the practice] but there was a handover from another day tendered into evidence as an example.[88] This document was detailed. When the plaintiff was questioned on this point she said the detail in the handover depended on the person and how busy it was at the time.    As discussed further below, there was no evidence that it was a busy morning when the handover was conducted or that it was a busy shift leading up to the Incident. It is most surprising in my view that the plaintiff was not told of the risk screening tool conducted at 3.00am prior to her shift commencing, particularly given that I find in the circumstances it was not a busy shift.  But Nurse White did not give evidence nor did any of the nurses on the previous shift who were involved in the handover and the plaintiff was not directly challenged on her evidence that she did not know of the earlier incident. Whilst the state of the evidence is unsatisfactory in relation to this issue [and a few others as discussed below], I accept on balance and find that the plaintiff did not know of the risk screening tool. 
  8. [65]
    At first blush this finding is concerning and superficially inconsistent with the findings at paragraph [62] of these Reasons that a handover occurred. But I am persuaded to make it having regard to the following.  First that the Plaintiff was very familiar with and aware of the types of patients admitted to the PICU as she has been working in the unit four days a week since mid-2011. Second and more relevantly she had previous experience with the Patient as a young man with concerning behavioural issues. A person she described as a schizophrenic, problematic patient who did not want to be in the unit.[89]
  9. [66]
    Aside from the presence of the Patient, and another patient in the seclusion room at the time of the Incident,[90] there was no evidence about any other patients in the PICU when the plaintiff came on duty.  Also surprisingly in my view [despite the passage of time], the plaintiff gave no evidence about her interaction with the Patient or any other patient during the course of her shift. 
  10. [67]
    The plaintiff could not recall anything special about her duties that morning. It was suggested to the plaintiff under cross examination that she had not remained solely at the main nurses station since the beginning of her shift [before the Incident] and that she must have gone into the PICU at some stage prior to the Incident.  The plaintiff said she could not recall “precisely” what she did but the “roles were that we do medication first thing in the morning”.[91]  There was no evidence of how the plaintiff or any nurse knew what medications to dispense to patients. Common sense dictates that a patient’s medication must be recorded somewhere.  There is certainly reference to medications being recorded as being given in the progress notes. The plaintiff denied that progress notes would be checked before administering the medications and she said it was not a common practice to log onto the computer in the mornings. I found the plaintiff’s evidence evasive and unhelpful on this issue.  There is no evidence of what [if any] medications the Patient was dispensed prior to the Incident during the plaintiff’s shift. Although the progress notes show he was given “PRN Clonazepam, 2mg” at 8.15 pm on 8 August 2012.[92] The progress notes in evidence also refer to medication being prescribed to the plaintiff after the Incident and that at 10.15 am he was placed in Seclusion and given “further 2mg clonazepam” at “1500 hours” and “1615 hours”.[93]   
  11. [68]
    As discussed, there was no evidence of what [if any] observations or dealings the plaintiff had with the Patient for the three hours she had been on duty prior to the Incident occurring.  In my view the only reasonable inference to be drawn is that the plaintiff had not encountered any difficulties with the Patient and that he was calm and not threatening on the morning for at least three hours leading up to the Incident. The Patient may have been given some medication by Nurse White or the plaintiff but that would be pure speculation and I cannot make such a finding.     
  12. [69]
    In her evidence in chief the plaintiff’s evidence was that at approximately 10.00am she was sitting [at the nurses station] looking into the PICU when:[94]

“… I noticed [the Patient] was sitting on the breakfast bench. I knew that Bettina White was in the medication room.  I was planning to go in and do a rubbish run.  So the first thing that I do is I put a pair of gloves on and then turned to walk towards the door.  I pushed down on the handle of the door, and the door was pushed back into meI had a – I struggled at the door to try and keep the patient in the locked unit.  I called out twice for help. My exact words were, ‘I need some help here.’  And then nothing happened.  So I called out a second time, ‘I need some help here.’ After maybe a few – a little bit of time, not long, I heard footsteps coming, and Scott Calvird came and stood over me and braced himself on the door.  I said to him something along the lines of, ‘I’ll just get out of the way now,’ because I was trapped behind the door.  So I twisted and manoeuvred myself away from the door, and Jun [Ozawa] had come up behind Scott as well.  ---

After that, Scott – Scott and Jun were in front of me, and they’re bigger than me.  So I couldn’t see exactly what was happening.  But the next thing that I – I stood behind them.  The next thing that I saw was that they were moving into the PICU.  There was a takedown.  I didn’t follow them in directly.  There was a takedown, and the patient hit the wall.  And then I’m not sure whether they grabbed him or pulled him down or he fell.  But he was on the ground face first, and Scott and Jun were holding him down.  And Bettina White came around from the medication room.  She was on one arm.  Scott was – one of the men was on another arm, and one was on legs.  Scott said to me ‘check his head’.  So I knelt down and felt the patient’s head, looking for any bumps or if he was bleeding whatsoever, and I’m not sure who called security.  But then security arrived, and the patient was taken to the seclusion room in the child and youth unit.” [Emphasis added]

  1. [70]
    It is relevant to note at this juncture that there was no suggestion by the defendant nor is it the plaintiff’s case that the plaintiff ought not to have gone into the PICU to do the rubbish runs.  It was also uncontroversial that a nurse standing at the nurse’s doorway leading into the PICU [where the Incident occurred] could not be seen by a nurse stationed in the medication room.[95] That is why the plaintiff was going to tell Nurse White that she was going to clear the rubbish in the PICU.
  2. [71]
    Under cross examination the plaintiff outlined the sequence to be that she was at the nurses’ station and could see the Patient through the glass window and he was a distance of 15 metres away.  She accepted that she did not have any concerns about the Patient when she saw him sitting on the breakfast bench and that there was nothing alarming about his behaviour.[96]
  3. [72]
    The plaintiff then put her gloves on and then she went to the PICU door to go to open it.  The plaintiff does not say exactly where at the nurses station she stood or how long it took her to get to the PICU door from the nurses station but given they are adjacent to each other and from the photographs in evidence, I infer that it was a matter of steps and seconds.[97]
  4. [73]
    Later in her evidence-in-chief the plaintiff said that once she was at the PICU door her vision of where the Patient was situated was obscured due to a piece of wall jutting out. The plaintiff accepted that she did not look in the chrome mirror located in the ceiling of the locked unit prior to opening the PICU door.  She described the chrome mirror as offering a distorted view, and that looking at the chrome mirror would have taken her attention away from where the Patient was situated.[98]
  5. [74]
    The plaintiff described an eight centimetre piece of glass that you can actually look through [on the PICU door], but that “you can’t see anything off to the left or the right or anything down low.”[99] The defendant submitted that the crux of the plaintiff’s evidence was that she did not look through the glass panel on the secured door on the day.  In my view that it is not a fair assessment of her evidence.  When counsel for the defendant suggested to the plaintiff that she had not looked through the glass window on the secured door before she attempted to open it, the plaintiff’s evidence was “I would always look through the glass window in the door”.[100] 
  6. [75]
    The following exchange is most instructive:[101]

“I asked you before what you did and when you looked.  You didn’t look into – through the glass window on the secured door, did you, before you attempted to open the door?

I would always look through the glass window in the door. Is it the case you can’t remember whether you did or didn’t on this day?

It’s right in front of me. Yes?

It’s a glass – piece of glass in front of me.  I would always look in there.

Can you say whether you did on this particular day or you can’t remember?

Did I notice myself doing – looking through the door?

I am asking you what occurred that day and what you can remember? – So I would always look through the glass door.  But you’re – if you’re asking me do I specifically recall… Doing that?... doing that action I find it very difficult to say “no”, because I would never walk through without looking through the glass door.

  1. [76]
    When pressed again by counsel for the defendant about whether she could specifically recall under oath having looked through the glass panel on the door just prior to the Incident, the plaintiff accepted she could not specifically remember.[102]
  2. [77]
    In my view this evidence reflects well on the plaintiff.  Given the passage of time and the trauma that occurred shortly afterwards, it is not surprising that she could not remember specifically looking through the glass panel.  
  3. [78]
    On balance I accept the plaintiff’s evidence that it was her usual practice to look through the glass panel on the door.  I note too and accept that Nurse Pyone told the plaintiff prior to the Incident that she was required to look through the glass panel in a discussion with her.[103] It makes common sense. One of the photographs in evidence shows the glass panel on the PICU door to be at the plaintiff’s eye level.[104] It follows and I accept that the plaintiff looked through the glass plate just prior to the Incident. As discussed below, I find the Patient was not running at the PICU door head on – it was from more of an angle and from a distance of 15 metres. In these circumstances, it is hardly surprising in my view that the plaintiff did not see him through the glass panel. 
  4. [79]
    The Incident happened very quickly. The plaintiff had only pushed the door handle down and had not begun to pull the door inwards when she felt the Patient push against the door.[105]  The plaintiff first estimated the distance from where the Patient was sitting on the breakfast bench to the entrance of the door was a distance of about 15 metres.[106]  The plaintiff estimated the time between sighting the Patient and the Incident occurring was about 4 seconds.[107] The plaintiff estimated that her struggle with the Patient at the door continued for approximately 40 seconds. Although she also said it took “a little bit of time, not long” for help to arrive.[108]  
  5. [80]
    During the struggle that ensued the plaintiff said “I was using as much effort, as much strength, as I had”.[109] She was unable to use her duress alarm that was on her waist because she could not move her hands from the door.  The Patient’s hand was through the door which prohibited the plaintiff from closing the door.  
  6. [81]
    In a written statement provided after the Incident, Nurse Calvird described his involvement as follows:[110] 

“From my office, where I was talking with Jun Ozawa I heard Lisa yelling for help. Jun and myself responded and found Lisa attempting to prevent a patient from the PICU pushing his way through the door into the nurses station.  Lisa was doing so by pushing against the door from the opposite side.  She was facing the door with both her hands against it and leaning into the door.  The patient was pushing from the other side and had half of his body through the door.  He was significantly larger and stronger than Lisa and appeared to be winning the struggle.  Jun and myself assisted Lisa by getting hold of the patient and taking him to the ground directly outside the door on the PICU side.  He was restrained in that position until security arrived and transported to the seclusion area.  PRN medication was administered and seclusion was commenced.” 

  1. [82]
    In my view the plaintiff’s time estimate of her struggle being 40 seconds to a minute is probably longer than the time she actually struggled on the day.  This is not a criticism of the plaintiff - no doubt it felt like a substantial time. My view is based on the uncontroversial fact that the Patient was taller and stronger than the plaintiff so a reasonable inference is that the plaintiff would not have been able to hold him off for that long.  Nurse Calvird said they got there in “the nick of time” and the patient “was sort of winning the contest”.[111] The plaintiff’s evidence was that assistance came “not long” after the plaintiff’s second distress call for help which happened almost immediately after the first call.[112] 
  2. [83]
    The plaintiff’s pleaded case is that the Patient was hiding behind the door and could not be seen through the glass panel.  I do not accept that this pleading is supported by an objective view of the evidence.  In his written report of the Incident Nurse Calvird reported that the plaintiff told him that she was going through the nurse’s station door when the Patient ran at the door from across the room.  Whilst this is speculation, it is a reasonable and indeed logical conclusion to draw.  Under cross–examination at trial the plaintiff agreed (acknowledging fairly that it was pure speculation) that it was possible that the Patient may have run from the kitchen bench to the door while she was preparing to turn and enter into the PICU.[113]
  3. [84]
    Based on the plaintiff’s time and distance estimates, which I accept, the Patient would not have had sufficient time to hide behind the door.  As discussed above I am satisfied that the plaintiff looked through the glass plate on the PICU door on the day of the Incident.  But in my view, on an objective assessment of her evidence about the Incident, particularly given she had just sighted the Patient some 4 seconds earlier sitting calmly on the breakfast bench, this action most likely occurred simultaneously with the plaintiff opening the PICU door.[114] In my view on balance the most reasonable and logical conclusion to be drawn is that the Patient saw an opportunity and ran to the door as it was being opened by the plaintiff. In my view, the plaintiff would have been running at the door from an angle given that the breakfast bench was not directly in front of the PICU door but 15 metres to the left of the door when looking into the PICU unit from the nurses station.   
  4. [85]
    On the above analysis, I am satisfied on balance that the relevant facts of the Incident occurred as set out below and accordingly I find that:
    1. (a)
      From the nurses’ station outside the PICU, the plaintiff observed the Patient sitting calmly on the breakfast bench in the PICU at around 10.00am on 9 August 2012;
    2. (b)
      Nurse White was paired with the plaintiff on the shift and she was in the medication room at the time;
    3. (c)
      The distance between where the Patient was located on the breakfast bench and the entrance to the PICU door inside the PICU was approximately 15 metres;  
    4. (d)
      The plaintiff put gloves on at the nurses’ station and walked a couple of steps to the adjacent PICU door with a view to going into the PICU to clear the rubbish; 
    5. (e)
      The plaintiff was planning to walk to the medication room to tell Nurse White what she was going to do before she started clearing the rubbish; 
    6. (f)
      The plaintiff looked through the glass panel on the PICU door as she opened the PICU door; 
    7. (g)
      Approximately 4 seconds after the plaintiff had last seen the patient 15 metres away on the breakfast bench, the plaintiff pushed the handle of the PICU door down and before the plaintiff had begun to pull the door inwards, the Patient ran (15 metres) from his position on the breakfast bench, diagonally across the inside of the PICU, to the secured side of the PICU door, and attempted to push through the door to escape the PICU;
    8. (h)
      The plaintiff pushed back against the door with all of her effort and strength using the force of both of her hands and shoulders;
    9. (i)
      The plaintiff immediately called out for help on two occasions. On the second occasion Nurse Calvird and Nurse Ozawa rushed from the open section of the

unit and from behind the plaintiff placed both their hands against the PICU door in an effort to keep it from opening;

  1. (j)
    The plaintiff was trapped for a few seconds between the door and Nurse Calvird and Nurse Ozawa as they pushed back against the door; and  
  2. (k)
    After no longer than about 40 seconds, the plaintiff was able to manoeuvre herself away from the door by twisting away and allowing Nurse Calvird and Nurse Ozawa to take over the struggle with the Patient.
  1. [86]
    I accept the plaintiff’s evidence that she made a judgment call on the day of the Incident based on her experience that it was appropriate to enter the PICU.[115] I also find that  the plaintiff’s judgment call was made in circumstances where she: was aware of the cohort of patients admitted to the locked side of the PICU;  knew of the Patient’s  propensity for aggression, violence and wanting to escape [although I accept she did not know that he had been assessed as a high risk at 3.00am that morning]; had been on duty for 3 hours during which time the Patient had not displayed any aggression or caused the plaintiff or Nurse White any difficulties;  had observed the Patient sitting on the breakfast bench calmly before she moved to the PICU door;  looked through the glass panel on the PICU door as she went to open it;  was working in pairs with Nurse White [as required, she was going to tell Nurse White, who was in the medication room, that she was about to clean the rubbish in the PICU] .  
  2. [87]
    As discussed earlier in these Reasons, apart from the requirement to communicate with each other and to inform each other of their whereabouts prior to isolating themselves with patients and the other matters [such as wearing a duress alarm], the plaintiff was not provided with any other particular protocol or guideline for entering the PICU.  Nurse Wood’s evidence was that one had to be careful; keep an eye on each other; work in pairs; that it was not possible to have written down every eventuality which may occur; and that judgment calls had to me made.[116]  I accept this evidence.  
  3. [88]
    I find the plaintiff’s judgment call was a reasonable one and that it was made in conformity with the PICU Management Guidelines, practices and policies. 

Has the plaintiff suffered any injury and, if so, what injury?

  1. [89]
    Immediately after the Incident the plaintiff did not realise that she had been physically injured.  She continued work in the PICU and finished her shift at 3.30pm.  It was not until the following day [10 August 2012] when driving to work that the plaintiff’s pain escalated and became severe.  The plaintiff felt physically restricted and was in considerable pain, with nerve pain pulsing through her lower back down her left leg.  She could not sit, had difficulty walking with a normal gait and needed to take shuffling steps.  Her blood pressure was extremely high.
  2. [90]
    On 10 August 2012 the plaintiff completed a tick box work incident reporting form[117] stating that she had suffered a joint/ligament/muscle/tendon injury and mental health/stress and that she was psychologically affected.  The body parts affected were stated to be the upper and lower back, hip and the upper/lower leg on the left-hand side. The plaintiff also attended the emergency department of the hospital on 10 August but due to delays there she returned to the PICU.  But she was unable to continue working due to the severity of the pain so she went home and saw her general practitioner the next day.  
  1. [91]
    Dr Scott F. Campbell, a neurosurgeon, interviewed and examined the plaintiff on 2 December 2013 and 25 July 2018 at the request of the plaintiff’s solicitor.[118]  Dr Campbell diagnosed the plaintiff with an ongoing musculo-skeletal injury to the lumbar spine.  His original assessment in accordance with the AMA Guides Fifth Edition DRE Category II was that the plaintiff suffered an 8% whole person impairment but this was later revised to a 7% percent whole person impairment.  
  2. [92]
    Associate Professor Richard Williams, a consultant orthopaedic surgeon, examined the plaintiff on 16 December 2013 and 18 July 2018 for the defendant.[119] Dr Williams diagnosed musculo-ligamentous injury lumbar spine – resolved.  Dr Williams opined that the prognosis for resolution of symptoms was over a period not exceeding six weeks.  
  3. [93]
    An assessment of 0% whole person impairment was provided by Associate Professor Williams who is of the opinion that the plaintiff does not require any form of treatment for the work related injury and there is no pathogenesis for the persistence of symptoms.  
  4. [94]
    Dr Malcolm Foxcroft, a psychiatrist, examined the plaintiff on two occasions once on 5 December 2013 and then again on 26 August 2018. He provided four reports at the request of the plaintiff.[120] Dr Foxcroft opined that the plaintiff suffered clinically significant, moderately severe adjustment disorder with depressed and anxious mood and some features of post-traumatic stress.[121]  
  5. [95]
    Professor Harvey A. Whiteford a psychiatrist examined the plaintiff on 23 January 2014 and provided a report on 28 January 2014.[122]  He diagnosed an adjustment disorder with mixed anxiety and depressed mood in partial remission.
  6. [96]
    Professor Whiteford provided a further report on 16 September 2014, after he obtained access to the plaintiff’s general practitioner records.[123] These records commenced in August 2005 and included references to anxiety, depression, stress, worry, selfmutilation and taking anti-depressants.  In Professor Whiteford’s opinion, the plaintiff suffered a generalised anxiety disorder with panic attacks, a condition which has fluctuated over many years in response to life stressors.  
  7. [97]
    The plaintiff claims as a result of the Incident she sustained a chronic musculoligamentous injury to the lumbar spine and a psychiatric injury. The defendant accepts that the Incident could have caused the plaintiff’s injuries.[124] 
  8. [98]
    Upon my review of the medical evidence referred to above, I am satisfied on the balance of probabilities and I find that the plaintiff suffered a musculo-ligamentous injury to the lumbar spine together with a secondary psychiatric injury as a result of the Incident. 
  9. [99]
    There is a diversion amongst the experts for the plaintiff and the defendant about the extent and ongoing nature of these injuries but the resolution of those issues are relevant to quantum and have been addressed under that heading.   

What was the scope of the duty of care owed by the defendant to the plaintiff

  1. [100]
    At common law, an employer owes a duty to take reasonable care for the safety of its employees. But this duty does not oblige the employer to safeguard employees completely from all perils.[125] As Windeyer J observed in Vozza v Tooth & Co Ltd:[126] “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”[127]
  2. [101]
    This non-delegable duty is that of a reasonably prudent employer to take reasonable care to avoid exposing employees to unnecessary risks of injury.[128] The duty obliges an employer to take reasonable steps to provide a safe place of work and a safe system of work.[129] 
  3. [102]
    Each case will turn on its facts. The greater the degree of danger inherent in the work, the more likely will be the need for instruction and warning.[130] As Von Doussa J observed further in Perkovic v McDonnell Industries Pty Ltd:[131]

“….Even the most skilled employees in their familiarity with the work, or because of the speed or the circumstances under which the work is performed, may be prone to take shortcuts, to disregard obvious precautions, or to be unmindful of dangers. The employer’s duty to exercise reasonable care for the safety of his employees will often require that skilled employees be reminded periodically about the risks of their work and the need to guard against them.”

  1. [103]
    In Turner v South Australia, (1982) 42 ALR 669, Chief Justice Gibbs relevantly observed that:[132] 

“When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 416-417, 419.” [Emphasis added]

  1. [104]
    More recently in Brisbane Youth Service Inc v Beven [2017] QCA 211, the Queensland Court of Appeal affirmed the primary judge’s decision that the defendant employer was aware of and unreasonably exposed the plaintiff, a social worker, to the risk of overt sexual conduct by a young woman in its care and caused the plaintiff psychiatric injury. The employer was found to have failed its obligations to the plaintiff by not taking the necessary precaution of dispensing with the young woman as a client. 
  2. [105]
    President Sofronoff (with whom Gotterson JA agreed) relevantly observed:[133]

“[I]n my view, the fact that the dangers to which social workers might be exposed may be both obvious and expected does not operate to reduce an employer’s duty to ensure an employee’s safety.  On the contrary, while the standard of the employer’s duty of care remains the same, the occasion for action may become more evident by an employer’s appreciation of the ubiquitous nature of such risks and the potential for such risks to carry severe consequences for employees.”  [Emphasis added].

  1. [106]
    But as McMurdo JA observed (albeit in dissent) in Beven[134] the duty owed by an employer is not to avoid the risk, but to “act reasonably in response to it”:[135]

“….a court must identify what a reasonable person would have done, rather than looking backward to identify what would have avoided the injury. A finding of negligence does not inevitably follow from a failure to eliminate a risk that was reasonably foreseeable and preventable. The trial judge did not consider the critical question, which was whether the only reasonable response to this risk was to discontinue the provision of services to this young woman.” [Emphasis added]

Was there any breach of the defendant’s duty of care?

  1. [107]
    Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk.[136] 
  2. [108]
    The assessment of whether the response was reasonable calls for “a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”[137]
  3. [109]
    As McHugh J observed in Dovuro Pty Ltd v Wilkins:[138]

“A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage.  The plaintiff must show that the defendant was not acting reasonably in failing to take that course.  If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk.” [Emphasis added].

  1. [110]
    It is uncontroversial that the determination of whether there has been a breach of duty in this case must be considered by reference to ss 305B and 305C of the Workers Compensation Rehabilitation Act 2003 (Qld) (“WCRA”) which operate against the background of the common law principles [but modified to the extent discussed below].[139] These provisions state as follows:

305B General principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless – 
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  2. (b)
    the risk was not insignificant; and 
  3. (c)
    in the circumstances, a reasonable person in the position of the person would have taken precautions.  
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) – 
  1. (a)
    the probability that the injury would occur if care were not taken;
  2. (b)
    the likely seriousness of the injury;
  3. (c)
    the burden of taking precautions to avoid the risk of injury.  

 305C   Other principles  

In a proceeding relating to liability for a breach of duty – 

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless – 
  1. (a)
    the risk was foreseeable (that is, it is a risk of which  the person knew or ought reasonably to have known);

   and

  1. (b)
    the risk was not insignificant; and 
  2. (c)
    in the circumstances, a reasonable person in the  position of the person would have taken precautions.  
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) – 
  1. (a)
    the probability that the injury would occur if care were not taken;
  1. (b)
    the likely seriousness of the injury;
  2. (c)
    the burden of taking precautions to avoid the risk of injury.    
  1. [111]
    Each of the elements of s 305B(1)(a) to (c) are to be assessed from the viewpoint of the defendant, in the circumstances that were known, or ought to have been known to him at the time of the alleged injury.[140] 
  2. [112]
    In Reck v Queensland Rail, Fryberg J (with whom McPherson JA and Holmes J agreed), observed the following:[141]

An employer is not relieved of a duty to provide training in methods of avoiding risks inherent in its system of work simply because the risks are obvious and are known to its employees.  In the present case, although the risk was obvious, the remedy was not.

He submitted that the respondent did not give evidence that if he had received instruction he would have done something differently.  I doubt whether such evidence, given with the benefit of hindsight, would have added much to the strength of the respondent’s case.  There was no suggestion that he was a disobedient employee and no reason to think that he would not have followed an instruction given to him.”  [Emphasis added].

  1. [113]
    It follows that it is necessary for the court to identify what a reasonable person would have done prospectively rather than looking backward with the wisdom of hindsight.[142] 
  2. [114]
    The question whether the relevant risk was one the defendant ought to have known is to be determined objectively, taking into account the particular facts and circumstances subjective to the defendant.[143]
  3. [115]
    With these principles in mind, the risk in this case is appropriately defined as a risk that a nurse might sustain an injury in trying to prevent a patient from escaping the secured area of the PICU as the PICU door was being opened.

Was the risk foreseeable and “not insignificant”?

  1. [116]
    The written PICU Management Procedure in evidence provides relevantly that:[144]  “The PICU is designed to provide close observation, assessment and more intensive treatment of patients under the Mental Health Act 2000, who are acutely disturbed, at immediate risk of harm to self, others or from others, & cannot be safely managed in a less restrictive environment.” 
  1. [117] It is uncontroversial that prior to the Incident the defendant knew that the Patient:[145]
  1. (a)
    had a significant history of mental health issues and that he suffered from Schizophrenia; 
  2. (b)
    suffered from regular psychosis; 
  3. (c)
    would shout and abuse the nursing and medical staff and have violent outbursts every few days; 
  4. (d)
    had assaulted his mother while she visited him at the hospital; 
  5. (e)
    was frustrated and irritable; 
  6. (f)
    constantly spoke about leaving hospital; 
  7. (g)
    was treated with anti-psychotic medication; 
  8. (h)
    suffered from auditory hallucinations which included voices which advised him to kill the nursing staff; and 
  9. (i)
    had to be forcibly taken down and/or restrained by hospital staff on a number of occasions because of his psychiatric state.[146] 
  1. [118]
    The evidence is replete with observations by staff in respect of the plaintiff’s adverse behaviour.[147]
  2. [119]
    On 20 July 2012, Dr Sadasivan, a psychiatrist, noted “[the Patient] very attentive to exit/entrances.  He very obvious in manner trying to plan to escape”.[148]  
  3. [120]
    On 21 July 2012, the Patient attempted to assault staff, attempted to barge into the nurse’s station when staff exited the area, and attempted to assault two other patients.[149] 
  4. [121]
    On 22 July 2012,[150] general hospital staff had to respond to the Patient raising his fists high trying to scare staff.  Whilst a member of staff was escorting him down the corridor, the Patient unsuccessfully attempted to snatch the keys from a key chain attached to the staff member.  The Patient was reported to have clenched his fists with an aggressive posture, refusing to let go of keys; causing the chain to eventually break.  The Patient was repeatedly told to let go of the chain and refused to do so and was attempting to intimidate nursing staff.  Alarms were activated by other nursing staff in attendance.  Security were called to attend and to assist in administration of drugs that the Patient was reluctant to take.  The Patient stated that he wanted to kill nursing staff as they wanted to kill him.  Staff requested that security remain on the ward, but were unable to do this.  A decision was made to seclude the Patient due to his level of hostility.
  5. [122]
    On 4 August 2012, the Patient absconded from the open side of the Acute Young Adult Unit and was returned by his mother and sister later that day.[151]  
  6. [123]
    On 6 August 2012, the Patient was transferred to the PICU due to threatening Nurse O'Donovan with a regular kitchen cutlery knife in the open side of the unit.[152] 
  7. [124]
    As stated above, at 3.00am on 9 August 2012, a risk screening tour was completed by nursing staff drawing attention to the Patient’s impulsivity, anger, cognition, supporting violence, history of violence, recent threats or other aggressive actions/thoughts, history of substance abuse and psychotic symptoms.[153] The overall risk assessment summarised the Patient’s risk of aggression and absconding as high.  The registered nurse on duty recommended a further risk assessment.[154]
  1. [125]
    Nurse Wood described the Patient as “frustrated”, “difficult” and a young man with unaddressed “drug and alcohol issues”.[155] Nurse Wood’s evidence was that she was concerned prior to the incident that the Patient was quite aggressive and had the potential to strike out.  She had decided to take a mental health day the day before because the Patient had been so aggressive in the unit.  As such she was not present on the day of the incident.[156] 
  2. [126]
    The Patient was approximately 6ft tall, of Pacific Islander descent and of a lean, fit build. He was an aggressive young man with acute mental health issues and he was, I find, a high risk of attempting to abscond from the PICU.  I also find that the admission of a patient with such characteristics to the PICU was reasonably foreseeable and was in fact known to the defendant.   
  3. [127]
    In my view the risk of the Patient trying to abscond from the PICU causing injury to a nurse along the way was obvious and reasonably foreseeable.  Such a risk was well known to the defendant.  Further and based on the Patient’s history of behaviour known to the defendant at 9 August 2012 it was, in my view a not insignificant risk. It follows and I find that the risk that a nurse might sustain injury in trying to prevent the Patient from escaping the secured area of the PICU as the PICU door was being opened was foreseeable and not insignificant in this case. 
  4. [128]
    The question then becomes whether there were precautions that a reasonable person in the position of the defendant could have taken, to reduce the risk of injury, which would not be burdensome and would not impede the accomplishment of the work in the PICU. 
  5. [129]
    It then remains to be considered whether the adoption of any of the measures proposed by the defendant would probably have avoided the Incident and the injury suffered by the plaintiff. 

Causation

  1. [130]
    The plaintiff is required to prove that her injury was caused by a breach of duty according to the principles prescribed by s 305D of the WCRA as follows:

305D   General principles  

  1. (1)
    A decision that a breach of duty caused particular injury comprises the following elements – 
  1. (a)
    the breach of duty was a necessary condition of the occurrence of the injury (“factual causation”);
  2. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).  
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty – being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) – should be accepted as satisfying subsection (1)(a) the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. 
  2. (3)
    If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach – 
    1. the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and 
    2. any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.    
  1. (4)
    For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.  
  1. [131]
    The defendant submits that with respect to causation, there is “no half-way house”.  The plaintiff has the onus to prove that it is more likely than not that the steps or obviating steps that the plaintiff asserts the defendant ought to have taken would have avoided the Injury. I accept this submission. As Judge Bowskill QC [as she then was] observed in Knott v The Withcott Hotel:[157]

“So, in order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not “could” or “might”.” 

  1. [132]
    In Lusk v Sapwell [2012] 1 Qd R 507 at [76], Wilson AJA observed:

“An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected.  But the duty is not absolute.  And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.” [Emphasis added].

  1. [133]
    The authorities establish that in order to adequately plead causation the material facts [not the evidence] establishing the relationship of cause and effect between the breach alleged and the damage claimed must be pleaded.[158]  It is necessary for a plaintiff to plead “an alternative state of facts premised upon the defendant having exercised reasonable care and, specifically, upon there having been no relevant failure to act”.[159]  Such a “counterfactual hypothesis” must identify not only what the defendant would have done had reasonable care been exercised but also how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered.[160]  
  1. [134]
    The plaintiff’s pleaded case is that “a causal association exists between, on the one hand, the defendant’s negligence, breach of contract and, on the other the plaintiff’s injuries” [as described].[161] The defendant submits that the plaintiff’s causation pleading is defective as it does not plead how each of the acts and omissions relied upon by the plaintiff would have averted her injury. I accept this submission.
  2. [135]
    A similar bald assertion of there being a “causal association” in the context of a negligent failure to act was considered to be insufficient and was struck out [on an application to strike out] by Henry J in James v Queensland.[162]
  3. [136]
    In the present case, I accept (with one exception)[163] the plaintiff has pleaded what it is that she says ought to have occurred. But she has not pleaded how, if those actions were taken, they would have prevented her injury. The defendant submits that it follows that even if some breach of duty is found in respect of any particular allegation, there is no causal connection to any injury.  That is factual causation in s 305D(1)(a) of the WCRA is unproved.
  4. [137]
    I accept the defendant’s submission that the plaintiff has failed to plead the counterfactual hypothesis as to how the matters she says ought to have been done would have averted her loss [as she was required to do under the UCPR and in line with the relevant authorities].  But I do not accept that it automatically follows [in this case], as the defendant also submits, that I must find causation unproved because of this pleading deficiency. 
  5. [138]
    The onus lies on the plaintiff to properly plead and to prove her case. In this case there was no application to strike out the plaintiff’s deficient causation pleading prior to trial nor was there any request for particulars.  It is instructive too that the defendant did not raise the issue of the causation deficiency in its defence.  I understand that there are tactical reasons why one party might choose not to challenge another’s deficient pleading. For example they may not see it as their role to do the other side’s job.  But in this case evidence was tendered without objection on this causation issue, and the defendant also cross examined a number of witnesses about it. The issue was also ventilated in both oral and written submissions. In these circumstances, and despite the real issues in dispute not being properly defined as they should have been, I have determined that I will consider the issue of causation in light of the evidence and submissions that have been made.  The deficiency in pleadings makes the decision making role of the court more difficult and cumbersome than needs be.  It detracts from the efficient determination of the real issues in dispute between the parties.  

What would a reasonable person in the position of the defendant have done in response to that risk?

  1. [139]
    In the context of the above principles and resolve I now turn to consider the 10 steps that the plaintiff relies on in this case.  This requires a two stage analysis. First, a consideration of the reasonableness of the plaintiff’s [now confined] case as to the steps that ought to have been taken for her safety when she was working in the PICU and second, whether such steps would probably have avoided the plaintiff’s injury.

Step one: Provision of guidelines or protocols or risk assessments as to the safe way to enter the PICU

  1. [140]
    Step one is a broad contention. It is argued that the plaintiff should have been provided with clear instructions [guidelines or protocols or risk assessments] as to the safe way to enter the PICU. 
  2. [141]
    The plaintiff does not particularise what those clear instructions ought to have been.    The highest the submission was developed by the plaintiff’s counsel was that there were no clear guidelines in place for someone “like his client” when entering the unit when someone like the Patient was likely to make a break for it; and that she should have been provided with a safe system of work.[164] When pressed, counsel for the plaintiff submitted that the guidelines should have required that there be two nurses one of which included a strong male nurse or a security assistant or another co-worker keeping watch.    These steps and a few others are maintained by the plaintiff under separate headings and are discussed below.   
  3. [142]
    Dr Zalewski opined that relevant protocols and training would have addressed the obvious risks of moving from the nurse’s station into the common room. But aside from pairing he does not state with sufficient clarity what such protocols and training would be.  In his conclusion he makes the following general observations:[165]

“For the reasons outlined above, I would expect the Defendant to have strategies in place to minimise the risk of incidents proactively, i.e. conduct a risk assessment, rectify any security/safety deficiencies, maintain mandatory staffing levels, ensure staff worked in pairs and in close proximity to each other, ensure two staff were always present when moving from the Nurses Station to the common area, and ensure staff were suitably trained and supported with protocols about these expectation to minimise the risk. For [Patient], in particular, I would expect sufficient attention was taken to ensure his location was known due and staff were adequately informed about his known tendencies for spontaneous violence and escape. This would be achieved through pairing.” [Emphasis added].

  1. [143]
    This issue of pairing is dealt with separately below. Otherwise, to the extent that Dr Zalewski’s evidence is relevant to any of the other steps the plaintiff maintains ought to have been taken, I have considered it under the relevant headings below.   
  2. [144]
    As discussed earlier in these Reasons there were guidelines and practices including risk assessments made about entering the PICU.  Nurses were required to work in pairs [which meant two nurses always remaining within the confines of the locked PICU and communicating with each about their respective locations – particularly before isolating themselves with a patient]; nurses wore duress alarms; and constantly made judgment calls about their safety in the PICU.
  3. [145]
    The onus is on the plaintiff to clearly identify what else should have been done in terms of guidelines or protocols or risk assessments.  Apart from the steps identified and dealt with separately below, the plaintiff does not otherwise identify the guidelines or protocols or risk assessments necessary to safely enter the PICU; let alone how such things would have avoided the Incident.    It is not the court’s role to speculate about the plaintiff’s case under this general heading.  
  4. [146]
    Upon the above analysis I find there has been no breach of duty by the defendant for failing to generally provide guidelines or protocols or risk assessments. It follows that the issue of causation does not arise under this heading. 

Step two: Request for patients to back away from nurses’ station door

  1. [147]
    I understand there to be two aspects to the plaintiff’s case under step two that she should have been instructed to ensure and/or request patients back away from the nurses’ station door when staff entered the PICU unit.  First, that since the Incident, a notice to this effect has been placed on the PICU door. But of course the fact that such a sign was placed on the door after the Incident does not constitute an admission of liability in connection with the risk.[166]  And second, that ensuring that there were no patients near the door when it was opened could have been achieved through pairing by the other nurse on duty keeping a watch out as the other nurse entered the PICU which would have enabled that nurse to call out to the Patient and/or the other nurse about to enter if a patient was close to the door.[167]
  2. [148]
    The issue of pairing is raised in a number of other steps submitted by the plaintiff and is dealt with separately below.   
  3. [149]
    The notice that now appears on the PICU door states:

STOP 

DO NOT OPEN DOOR IF ENTRY TO PICU IS NOT CLEAR, ASK ALL CONSUMERS TO MOVE WELL AWAY FROM

THE DOOR BEFORE ENTERING

  1. [150]
    During the course of the trial, I struggled to comprehend the plaintiff’s submission as to the relevance of the instruction in this notice to the present case.[168] Upon further reflection I remain equally perplexed:  
    1. (a)
      First, how could it be said that it is more likely than not that the Patient would have complied with such a request?  Given his mental health conditions, it defies common sense to think that he would; and
    2. (b)
      Second, there is no evidence that the Patient was standing behind the door.  As I have found, when the plaintiff last saw the Patient he was some 15 metres away sitting on the breakfast bench, he appeared calm and he had not caused any disruption for the three hours prior to the Incident.
  1. [151]
    In my view, the instruction contained in the sign is a reasonable precaution to have implemented in the PICU but in my view it is not a relevant response to addressing the relevant risk of a volatile patient attempting to abscond through the PICU door.  Even if I am wrong about that, I do not accept on balance that in this case such an instruction would have avoided the Incident.   The evidence in this case is that the Patient was attempting to escape from the unit and ran at the door over a four second period. Asking the Patient to stand clear of the door would not have made any difference in this case.
  2. [152]
    It follows and I find that such a step does not address the relevant risk in this case and in any event I am not satisfied that it would not have avoided the Incident.

Steps three, four and five: Working with other nurses - pairing 

  1. [153]
    There is a considerable overlap between steps three, four and five proposed by the plaintiff as they relate to  nurses working in pairs and unison with each other and others (such as security) as they enter through the PICU door.  It follows that it is convenient to address these steps under the one heading.  
  2. [154]
    By step three the plaintiff submits that she should have been instructed to ensure that she never entered the unit prior to communication of her intention to do so with the other nurse on duty in the PICU and that the other nurse observe the entry to ensure that the Patient could not attempt to escape during the entry. By step four the plaintiff submits that she should have been instructed to ensure that she worked in unison or pairs with the other nurse on duty so that they were both present when entry to the unit was undertaken by one or both of them, and only when both of them agreed that entry was safe and no patient was in a position to escape from the unit. By step five the plaintiff submits that there should have been a system in place that ensured two nurses but more appropriately and reasonably in the circumstances, a nurse and a strong male nurse or a security officer or assistant [the plaintiff and a co-worker] were present at the nurses’ station door when accessing the locked unit of the PICU or, at the very least, to ensure a system where the two nurses [or nurse and co-worker] could and would observe each other, from their respective positions, at the door and in the medicine room, so that there was an agreed assurance between them that the person entering the locked unit, the strong male co-worker or security officer as vanguard, could do so without the risk that a patient would or could attempt an escape from the locked unit and in doing so pose a risk to the safety of staff, including the plaintiff.
  3. [155]
    There was some inconsistency in the evidence from different nurses about their understanding of pairing. 
  4. [156]
    Nurse Calvird said that it was normal practice to have two nursing staff on duty in the PICU[169] but this did not mean that both were on the floor together at the same time. For example: one might be in the nurse’s station and one in the PICU.[170]  This evidence was consistent with the evidence of Nurse Wood, Nurse O'Donovan and the plaintiff discussed earlier in these Reasons.[171] 
  5. [157]
    Nurse Ozawa’s evidence was that two nurses would have to go into the PICU together. In his view it would not be appropriate for a nurse to go into the PICU alone. He gave an example that if there was a phone call, which had to be answered at the nurse station, that in that case both nursing staff would have to come out of the PICU. But he said “one can just stay in the PICU area very close to the nurse station to make sure, you know, to keep eye on other patients in PICU.”[172] 
  6. [158]
    To the extent that Nurse Ozawa’s evidence differs, I prefer the evidence of the majority of the witnesses on this issue and I find that the concept of pairing as practised in the PICU was that two nurses were on duty together but this did not mean that they were both physically working in the locked part of the PICU at the same time. As long as they both knew each other’s locations and were either in the locked area or at the main nurses station they were working in pairs. I also find that it was not the practice or a policy of the PICU for nurses to observe each other or to keep a watch out for each other as they came in and out of the PICU. 
  7. [159]
    The question then becomes whether the steps proposed by the plaintiff in relation to pairing and nurses keeping a watch out for each other are reasonable precautions for the defendant to have taken in terms of the risk in this case.
  8. [160]
    At times, I found the plaintiff’s case difficult to follow with regards to what was being argued in terms of pairing. On the one hand I understood that the crux of the plaintiff’s case in terms of pairing was that the one nurse ought to have remained on the non-secure side of the PICU and had her eyes on the Patient at all times as the plaintiff then entered the PICU.  But during the trial counsel for the plaintiff referred to the “danger was that the instruction about pairing was so undefined that it didn’t require the two staff members to be together as they went into the unit”.[173]
  9. [161]
    Ultimately, it does not appear to be the plaintiff’s case that the two nurses needed to be together – tied at the hip – physically in the same place their entire shift.  The case as I understand it is that they needed to be observing each other’s movements in and outside of the PICU and that they should keep a watch out and know of each other’s whereabouts the entire time.  For example, Nurse Calvird was cross examined by counsel for the plaintiff about the nurses keeping a watch on each other as follows:[174]

“Can I put it to you sir, that given what I’ve already discussed with you about the known history of [the Patient], that the most appropriate way for a nursing staff member to enter the locked unit in PICU was to have at least one nurse at the nurse's station, looking through the glassed area and the convex mirror, if you like, whilst the other nurse was able to go to the door and then look through the panel there available and then, if everything is clear, for that nurse then to move into the unit?--- That wouldn't be - no, that's not normal practice to do that. You can do all that yourself.  You don't need someone else to do it for you.  You can do that as you're entering in and out of the unit. There’s quite good visibility there.” [Emphasis added]

  1. [162]
    I accept Nurse Calvird’s evidence to the extent that it supports a finding that it is possible for a nurse to observe the location of a Patient herself prior to entering the PICU door without someone doing it for her. But there are two aspects of his response that I do not accept. First, whilst the chrome ball can be used to observe a person on the inside of the PICU door there was not a consistent policy about its use.  Second, whilst I accept that there was a view of inside the PICU through the glass panel on the PICU door, the evidence was that this view only extended to what was directly in front on the other side. The evidence which I accept was that someone sitting on the breakfast bar bench could not be viewed from the entrance to the PICU door as there was a wall that jutted out blocking sight.
  2. [163]
    Under cross examination, Dr Zalewski’s evidence was that the difficulty, as he saw it, was that pairing is not defined in any of the documentation. In his view pairing in a high risk area with high risk patients required nurses clearly being near each so that they could “effectively be the eyes and ears of each other as they moved around this high risk area with high risk patients, so – so that was one of the issues”.[175] 
  3. [164]
    Dr Zalewski opined that the positioning of Nurse White in the medication room, two doorways down from the plaintiff in the nurse’s station, was not suitable pairing as Nurse White was unaware the plaintiff was about to move through the secured door.[176] This evidence I accept is consistent with the evidence of Nurse Grice that the idea of pairing was to have two registered nurses working in the PICU and that they were to work together, communicate with each other to keep each other safe.  
  4. [165]
    Nurse Grice explained relevantly that:[177]

“Essentially it’s – you wanted to have the other staff member there to watch your back, in a general sense?---Well, we have a nursing framework business – it’s called the Business Planning Framework for Nursing – and as part of that we look at what the role, what the carers, and that determines what the ratios for staff are. So whilst this is around – focused on safety, our ratios for nursing are determined through the BPF process and we have a ratio of two nurses to four consumers – or one to two when they are in the intensive care area. So, yes, they should be working in partnership.”  [Emphasis added]

  1. [166]
    The plaintiff was technically not following the PICU Management Procedure by isolating herself with the Patient prior to telling Nurse White what she was doing. But in my view she was acting in accordance with the practice in the PICU at the time.  She was working in a partnership and was going to tell Nurse White who was in the PICU (albeit the medicine room by herself) that she was about to collect the rubbish in the process. The plaintiff isolated herself in circumstances where she had made a judgment call that it was safe to do so. As stated earlier in my view this judgment was a reasonable one.
  2. [167]
    In Dr Zalewski’s opinion,[178] had Nurse White and the plaintiff been suitably paired at the time of opening the secured door, one of them would have been able to maintain observations through the glass nurse’s station perimeter of the area outside the secured door and have noted the presence of the Patient.  In his view, had such observations been made, the door would not have opened and the accident and damage to the plaintiff would not have occurred.  
  1. [168]
    Under cross examination Dr Zalewski stated “two people together conducting observations and being paired will minimise risk greatly compared to working in isolation.”[179] I accept this general observation. But he also made a number of reasonable and relevant concessions under cross examination [which I also accept] including that:
    1. (a)
      Even if there had been another nurse with the plaintiff in the nurses station and one attempted to enter and there was a patient behind the door whether the incident would have occurred depended on the position of the nurses and their observations and that “I mean, you know, the person – if a high risk patient had been standing behind that door for 10 minutes, it’s very different than a high risk patient rushing at a door on a – on a spontaneous type of - - -”.[180]
    2. (b)
      The very nature of high risk people such as the Patient was that they can act very much impulsively and unpredictably and “logic isn’t always the rule in those high-risk areas.”[181]
  2. [169]
    In my view Dr Zalewski’s opinion is given with the benefit of hindsight and overlooks one important crucial feature in this case – that is the plaintiff herself had already noted the presence of the Patient prior to entering the PICU.  She did not need anyone to observe for her where the Patient was prior to her attempting to enter through the PICU door.   
  3. [170]
    It follows upon the above analysis and I find that it is not a reasonable, practical or necessary precaution for the defendant to have implemented a system that the nurses on duty in the PICU were to be the eyes and ears of each other to the extent agitated by the plaintiff such that one would need to be at the nurses station to watch the other as they entered in and out of the PICU through the PICU door.
  4. [171]
    I also do not accept [if it is the plaintiff’s case] that a reasonable, practical or necessary precaution was for two nurses to have entered the PICU at the same time. It would not have been possible in my view given the width of the PICU door.  
  5. [172]
    Even if I am wrong about the precautions above being reasonable, in the circumstances of this case as I have found them to be, I am not satisfied that it is more likely than not that these steps would have avoided the Incident on two bases. First, prior to the Incident the plaintiff observed the Patient to be sitting calmly at a distance of 15 metres away. The plaintiff said that there was a time span of about 4 seconds between when she saw the Patient on the breakfast bench and when she started the process of opening the PICU door. The evidence was that the plaintiff had turned the door handle down but had not yet opened the door when the Patient tried to barge through.  I am not satisfied that given how quickly the Incident occurred that it is more likely than not that either of these steps would have avoided the Incident.   Even if the nurse at the nurses station saw the Patient barge at the door and screamed out or pressed her belt alarm or the duress alarm I am not satisfied that the plaintiff would have stopped what she was doing in time.
  6. [173]
    If someone was keeping a lookout from the nurses station [or even walking in the door after the plaintiff], instead of the plaintiff having to push back against the Patient for up to around 40 seconds, the other nurse would have come to the aid of the plaintiff earlier [i.e. in a couple of seconds] resulting in the plaintiff fighting off the Patient for a lesser period of time.  The difficulty is making an assessment as to whether this would have avoided the plaintiff being injured. There were no submissions made by the parties on this point.
  1. [174]
    In my view the plaintiff would still have had to push back against the PICU door albeit with the help of another person and for a shorter time. Accepting too that further back up would have arrived faster, the plaintiff would still have had to manoeuvre herself from her position behind the PICU door.  In these circumstances, I am not satisfied that the plaintiff would not have suffered an injury. 
  2. [175]
    Step five adds another dimension to the plaintiff’s case as it introduces the concept of only having a “strong” male nurse or security enter the PICU in the circumstances.  It is instructive at the outset to observe that Dr Zalewski makes no mention of these precautions as reasonable responses to the risk.

Male nurse

  1. [176]
    There was no evidence about the ratio of male to female nurses employed at the hospital [or in general] and most relevantly of the availability of male nurses and security trained and able to work in the open Acute Young Adult Mental Health Unit or the secured PICU.  
  2. [177]
    There was no particularisation by the plaintiff of how strong such a male nurse would have to be.  The plaintiff does not submit what height, weight and build the male nurse must be.  Is it intended that the male nurse must be able to lift a certain weight to be eligible for a positon in the PICU? I do not know and I cannot speculate about such matters.  
  3. [178]
    I do not intend to descend into a physical “battle of the sexes” in this case but common sense and human observations lead to a conclusion that not all men are physically stronger than all women.   The evidence was that there were two male nurses on duty in the open area of the unit at the time of the Incident, Nurse Ozawa and Nurse Calvird. Nurse Calvird gave evidence on the telephone so I do not know his build – but Nurse Ozawa gave evidence before me and my observations of him was that he was relatively short and of a slight build. I have no idea how strong he was but I am unwilling to infer based on his gender alone that he is any stronger than the plaintiff or any of the other female nurses who gave evidence before me.  What about the potential discrimination issues that would arise in the implementation of such a criteria in nursing?   When it was suggested to Nurse Calvird by the plaintiff’s counsel that an extra male nurse, bigger than the plaintiff, “more your size, six foot one, would’ve been appropriate to assist in managing [the Patient]”, Nurse Calvird’s responded insightfully “Yeah, any – any big guys are handy in a – in a – in a violent incident, but it’s not something I can ask for.  I can’t ask for big – big males.”[182]
  4. [179]
    Nurse Calvird was cross examined in some detail about the issue of a male nurse being rostered on to enter the PICU.  It is difficult to make credit findings in relation to witnesses who give evidence by phone. But to the extent it is necessary, I found Nurse Calvird to be a credible witness.  He conceded matters he did not know or could not remember and otherwise he gave relevant and cogent evidence on other issues.   Nurse Calvird rejected the proposition put to him by the plaintiff’s counsel that given what was known about the Patient prior to the Incident, it would have been appropriate to have arranged for a male nurse to have entered the locked unit.  His evidence which I accept is most instructive:[183]

“I don’t think we – the only time I would have arranged male nursing staff to look after patients specifically is if there was allegations of sexual assault.  Sometimes it’s actually beneficial to have female staff working with male patients, because they – they either relate better or feel less threatened.  It’s not something that you use as a general rule to have males working with males.” [Emphasis added]

  1. [180]
    Other evidence from Nurse Calvird which I accept was that it would not have been easy to roster on a male nurse to the unit with the Patient as it depended on the rosters that were done a month in advance.   His evidence was that if an extra male nurse was required he would have to obtain permission from the nursing director and he would need to have a reason.  He could not recall any request from nursing staff for further staff in the PICU. If there had been he would have explored the idea.[184]  It was suggested to him under cross examination that it would not cost anything “to have males looking after [the Patient]”.[185] His evidence in response which I also accept, was that it could have possibly cost more, but that depended on the skill level of the staff and the nursing grade “and all that kind of stuff, and whether we had to call someone in for overtime or – the only other way to do it cheaper would be to deploy someone from another ward, which is not easy to do because it’s hard to get people deployed from other wards because of their owns needs [indistinct] other ward’s needs”.[186] 
  2. [181]
    There was also suggestion in argument by the plaintiff that the presence of a strong male would have meant that the Patient would not have tried to escape in the first place. I do not accept this argument.
  3. [182]
    The plaintiff relied on the evidence being that the previous incidents involving the Patient occurred around female nurses. That may be true but there was also evidence that his family including his father had encountered difficulties with him. But even accepting that otherwise all of the incidences occurred around a female nurse or staff member, without knowing all of the relevant circumstances in which these incidences occurred, I would only be speculating about whether a male presence would have made any difference.  In support of this view, I note that Nurse Calvird did not know if gender would have made any difference to the Patient’s behaviour.[187]
  4. [183]
    The evidence in the present case is that the Patient was admitted to the PICU on 8 August 2012, apparently without much notice, after being taken back to the hospital by his mother and sister after he had absconded from the open Acute Young Adult Unit on the same day.  In those circumstances it would not have been practical or reasonable in my view for the defendant to have insisted that a male nurse be urgently rostered on duty.
  5. [184]
    The response to the risk must be a reasonable one. On an objective view of the evidence before me I find that it would be a potentially expensive and an impractical working solution to insist on a policy that entailed having a strong male nurse on duty in the PICU on every shift involving someone like the Patient [or even more generally] and to insist that only that male nurse would be able to enter the PICU [either alone or with a female nurse on duty].
  6. [185]
    On the evidence before me, I am not satisfied that the suggestion that the plaintiff ought not enter the PICU at any time without a strong male nurse is a reasonable or a practical one. 
  7. [186]
    Upon the above analysis I am not satisfied and I find that it was not a reasonable or practical precaution for the defendant to have insisted that a male nurse be on duty when the Patient was admitted to the PICU. 

The presence of security officers

  1. [187]
    Nurse Calvird rejected the proposition that it would have been entirely appropriate in response to the presence of the Patient in the PICU to have security assisting nursing staff to make safe access to the unit. In doing so he stated candidly:[188]

“Look, it would have been nice to have, but it’s not practical.  We – we can’t usually get security to be on – present on the ward constantly.  It’s something we have to get permission from – from our hospital executive to do.  It’s quite an expensive exercise to do that, and security have got limited resources and they have to call in extra staff if they have people permanently based on a ward.” [Emphasis added]

  1. [188]
    Counsel for the plaintiff submitted that he was not suggesting a security person be permanently based there “but just on those occasions when staff have to go into the unit”. Nurse Calvird’s response, which I accept, is most apposite. He stated relevantly “That would be impractical.  They’d have to be there on a – on a fulltime basis to do that, because you’re in and out of that – that unit all the time”.[189]
  2. [189]
    Nurse Calvird’s evidence was that the Patient’s behaviour was behaviour that the defendant dealt with every day in the PICU and that it was not more extreme than some of the other incidents that had occurred in the PICU and that to have a security presence “usually warrants someone of a higher calibre of aggression”.[190] He was not pressed further about this statement, but I understood him to mean that a security presence was necessary on the unit when a patient’s behaviour had escalated and not when the patient was subdued.  But in my view this evidence overlooks two very important matters.  First, as discussed earlier in these Reasons,[191] the PICU is designed to provide observation, assessment and treatment to acute mental health patients who are disturbed and at immediate risk of harm to self and others or, who cannot be safely managed in a less restrictive environment.  There was no evidence that all of these patients were a high risk [or indeed any risk] of absconding.    Second, it is correct that the Patient was not behaving aggressively at the time of the Incident or earlier, but he was a patient with a high risk of trying to abscond.   This risk was well known to the defendant. The Patient was assessed seven hours before the Incident as a high risk of absconding. The records of the defendant revealed that he had made at least four attempts to abscond over the three previous weeks.[192] On 19 July, a Psychiatrist observed the Patient was very attentive to exits and entrances and was very obvious in manner in trying to plan to escape.  On 22 July the Patient had caused a problem for staff in the general part of the hospital and security were called and asked to remain on the ward and that was not possible - so a decision was made to seclude the Patient due to his level of hostility.    
  1. [190]
    The evidence in this case, that the Patient was observed by the plaintiff [at around 10.00am] to be sitting on the breakfast bar, looking into the nurses station must be considered.  Relevantly he was observed to be some 15 metres from the PICU door, which was situated beside the nurses’ station.   It is a reasonable inference open on all of the evidence and I find that the Patient was sitting there waiting for an opportunity to escape. He took advantage of such an opportunity when the plaintiff went to open the PICU door. He ran to the door in an attempt to barge his way out.   
  2. [191]
    The defendant submits that the Patient “has impulsively just rushed or run at the door. The employer is not liable for this risk. It is one of the inherent risks of the work. An absence of reasonable care is not responsible for the incident and injury”.[193]  I reject this submission for two reasons. First, in my view, it is not correct to characterise the Patients conduct as an impulsive act.  It was opportunistic but in the circumstances known to the defendant it was not “impulsive” or “spontaneous”.[194] Second, I accept the risk of escape was an inherent risk of the work.  But the defendant was on notice and well aware of the risk that the Patient would try to escape through the PICU door entrance given the chance. As far I can determine on the evidence, the defendant took no relevant precautions to meet this particular risk. 
  3. [192]
    Nurse Calvird conceded under cross examination that when taking into account all of the incidences involving the Patient leading up to the Incident and with the benefit of hindsight it would have been appropriate to take some steps to ensure that staff were protected by having security on the floor. Relevantly he said “Extra staff, whether it’s security or nursing, would’ve been great in any instance.  It’s always great to have extra staff, but…”[195] 
  4. [193]
    I accept Nurse Calvird’s evidence that it would have been impractical to have a security person in the PICU all of the time or every time a nurse came in and out of the PICU.  I also accept his evidence that it would have been appropriate to take some steps to ensure that staff were protected by having security on the floor.  Given what the defendant knew about the Patient at the time, in my view this statement cannot be said to be one made through the prism of hindsight.  
  5. [194]
    Upon this analysis, I am satisfied that there was a reasonable and practical precaution available to the defendant to reduce the risk in this case.  I find that the defendant ought to have implemented a system in which a security officer was to be called to attend the PICU to assist nursing staff to make safe access to the unit on the occasions where at the time the nurse needed to enter the PICU, the Patient was observed [whether in a calm or agitated state] to be in the communal area of the PICU.  This system does not require a security office to be called every time a nurse went into the PICU, only when the Patient was observed to be within the vicinity of the PICU door in the communal area – an area obviously close enough to the PICU door for the Patient to be able to make a run for it.  
  1. [195]
    The evidence was that security officers were employed and present at the hospital. In my view such a system would not be too difficult or costly to implement. It would not entail more security needing to be employed. I accept that depending on the availability of a security officer at the time [for example the security officers may be attending to issues elsewhere in the hospital] this system may necessitate the nursing staff  waiting a few minutes or even longer, before undertaking the required task in the PICU. But in my view this system was a reasonable and practical precaution to the risk in this case.  
  2. [196]
    This precaution is more confined than what was broadly pleaded and ultimately argued by the plaintiff at trial. But at trial there was a reasonable amount of evidence about the issue of the presence of a security guard at the time of a nurse’s entry into the PICU.[196]  It was also addressed in the defendant’s written submissions at trial.[197] It follows and I find that the defendant is not taken by surprise or prejudiced by my finding.
  3. [197]
    There was no evidence about what security officers at the hospital wear, or about the nature of the training they were given. But common knowledge and sense dictates and I find accordingly, that the security officer employed at the hospital would be easily identifiable by a uniform and well trained to deal with emergency situations such as a patient attempting to escape.  I am satisfied that if such a system had been implemented, it would have most likely avoided the Incident because the presence of a security officer would have foiled the Patients attempt to make an opportunistic run for the PICU door. 
  4. [198]
    It follows and I find that the defendant has breached its duty to the plaintiff by failing to implement such a system.

Step six: The Plaintiff should have been instructed to use the convex mirror and trained in its use

  1. [199]
    By step six the plaintiff submits that she should have been instructed to use the convex mirror [chrome ball] and trained in its use and that if she had been this would have avoided the Incident.   The plaintiff accepted that she did not look at the chrome ball.  She considered she made a judgment call on the basis that the Patient was 15 metres away and that it was in those circumstances it was safe to enter the PICU area and open the door.[198]  Her evidence was that there was never any direction given to her in respect to the use of the ball and that in any event it gave a very distorted view.[199]    As discussed earlier in these Reasons[200] above, I do not accept that the plaintiff was not given any direction about the use of the ball. But I accept that if used the chrome ball gave a distorted view. Although in my view its use would have revealed an image at the doorway if someone had been hiding behind or near the PICU door.  
  2. [200]
    In my view the issue of the chrome ball was a distraction in this case.  I accept that there ought to have been a consistent policy and practice about its use but given my finding in this case that the Patient had already been observed by the plaintiff and four seconds later he raced at the door [and was not crouched behind the door] instructing and training the plaintiff to use the chrome ball is in my view not a relevant response to the risk in this case.  
  1. [201]
    If I am wrong and the plaintiff training and using the chrome ball is a relevant response I am not satisfied that its use would have averted the Incident.  If the plaintiff had viewed the chrome ball by standing back from the PICU door, she would not have seen anything outside the PICU door. It is highly unlikely in my view that the plaintiff would have seen the patient charge at the door as he did.

Step seven: Implementation monitoring and enforcement of matters set out above

  1. [202]
    By step seven the plaintiff submits that the six steps discussed above should have been implemented, monitored and enforced by the defendant prior to the subject incident and if they had been the incident would not have occurred.
  2. [203]
    As discussed above I am satisfied that the defendant ought to have implemented a system in which a security officer was to be called to attend the PICU to accompany a nurse into the PICU if, at the relevant time the nurse needed to enter the PICU, the Patient was observed to be in the common room area of the PICU; and that the implementation of this step would have avoided the Incident. 

Step eight: Placing the Patient in seclusion

  1. [204]
    By step eight the plaintiff submits that the Patient should have been placed in seclusion pending further review by professional psychiatrists because of his observed behaviour and the risk assessment completed at 3.00 am on the morning of his attempted escape.  
  2. [205]
    It was uncontroversial that there was a seclusion room in the open part of the Acute Young Adult Mental Health Unit and the PICU. The evidence was that the patient had spent some time in both seclusion rooms prior to the Incident. He was placed in the seclusion room in the open section [as the one in the PICU was occupied] after the Incident. 
  3. [206]
    In my view there is no evidence to support the plaintiff’s submission that at the relevant time the Patient ought to have been in the seclusion room.
  4. [207]
    The evidence was that on 8 August 2012 the Patient had escaped from the open side of the Acute Young Adult Unit and was returned by his family around 7.00pm that night and placed in the PICU. It was not clear on the evidence why or how it was conducted but the records in evidence revealed that on 9 August 2012 a risk screening tool was carried out on the Patient by a nurse on shift in the PICU at 3.00am.  By this assessment the Patient was assessed as a high risk of aggression and absconding. A further risk assessment was stated to be required.   The plaintiff counsel submitted that the Patient should have been placed in seclusion at this point – but not for long.[201]
  5. [208]
    There was no evidence of how the patient was behaving at 3.00am when the risk assessment was conducted. It is not clear that he was awake at the time. It is instructive though to observe that the records from 9 August 2012 stated that the Patient slept until 0515 and was “warm and friendly on greeting”.[202]
  6. [209]
    Nurse Calvird’s evidence was that the fact that there was a risk that the Patient would be aggressive or abscond was not enough to put him in seclusion. In his view a person is only ever secluded when there’s an extreme risk to safety.[203] Waiting on medication to “kick in” was also not a reason to place a person in a secluded room.[204] Nurse Calvird’s evidence was that the type of behaviour the Patient was displaying just prior to the Incident [i.e. sitting calmly on the breakfast bench] was not the type of behaviour of someone who should be placed in a seclusion room.[205] 
  7. [210]
    Counsel for the plaintiff conceded that the purpose of placing a patient in seclusion was to calm the patient down.  He also conceded that you cannot put someone like the Patient in seclusion forever. At some point the Patient is entitled to be in the PICU non-secluded area.[206]
  8. [211]
    Dr Foxcroft’s evidence which I accept was that the approach is not to put people in seclusion unless it’s a last resort.[207]  
  9. [212]
    On a view of all of the evidence before me which I accept, I am not satisfied [without anything more] that placing the Patient in seclusion was a reasonable precaution to an assessment that he was at a high risk of absconding and aggression. This is particularly so in circumstances where there was no evidence that he was acting out or aggressive from the start of the plaintiff’s shift [and even earlier]. 

Step nine: Second convex mirror or other mirror

  1. [213]
    By step 9 the plaintiff submits that a second convex or other mirror should have been placed opposite the nurses’ door so that staff could look through the glass window in the door and observe what was outside the door and in the corridor.
  2. [214]
    It is not clear what the evidence or submissions of what the plaintiff is suggesting by this step. In the plaintiff’s written submission the plaintiff refers to the evidence of Dr Zalewski that the design did not effectively minimise the risk of unauthorised entry into the nurses’ station with reference to the need for “CCTV images of areas adjacent to the door/ and or a convex mirror positioned outside the door and viewable through the glass screen in the secured door”.[208]  There is some tension in my view with this suggested use of a convex mirror given the plaintiff’s reliance throughout this case on Dr Zalewski’s evidence and the evidence from a number of other witnesses, that these mirrors had limitations because they provide distorted images. 
  3. [215]
    My observations and findings in these Reasons in relation to step six are apposite to step nine. And as the defendant submits, this precaution assumes that the Patient was standing right outside the PICU door and would have been observed.[209]  It follows given my findings that the Patient had already been observed by the plaintiff and four seconds later he raced at the door [and was not crouched – or standing behind the door], this precaution is not a relevant response to the risk in this case.
  4. [216]
    Again, if I am wrong and it is considered a reasonable measure for a second convex mirror or other mirror to have been placed opposite the nurses door so observations could be made through the glass window in the PICU door, I am not satisfied the plaintiff  would have seen the Patient charge at the PICU door as he did.

Step ten: CCTV monitors

  1. [217]
    The final and tenth step the plaintiff submits ought to have been taken is that there should have been CCTV monitors at the nurses’ door allowing staff at the door to see whether entry could be made without the risk of an attempted escape by a patient.
  2. [218]
    The evidence was that the only coverage from the CCTV footage was in the seclusion room in the PICU. Dr Zalewski’s evidence was that the CCTV footage ought to have been enhanced to include the area adjacent to the secured door in the common area.[210]  
  3. [219]
    The evidence of Jackie Hawkins which I accept was that CCTV cameras are not necessary and are not used in mental health units.[211]  When it was put to her that the cost would only be a couple of thousand dollars, her evidence which I accept was:[212]  “The CCTV cameras and monitor I’m talking about, we’re talking about a couple of thousand dollars?---Well, no, because it’s – it’s clinical footage, so it’s – it’s not a couple of thousand dollars.  It requires a whole lot of network clearance and recording, and it needs to be compliant with the policies.  So, you wouldn’t – major health facilities – Queensland Health doesn’t have independent security systems that monitor one spot or another, they all feed into what becomes potentially part of a clinical record.  So, it wouldn’t be a cheap solution, but as I said, it wasn’t deemed necessary.  It was deemed to have a risk attached to it, and the systems that were in place provided more than adequate vision. [Emphasis added]
  4. [220]
    Nurse Grice said she had concerns about the use of CCTV footage in a psychiatric unit because it may heighten a patient’s paranoia and in fact make people more agitated and distressed about having a camera present. She was also aware that there was often a concern from staff about being monitored as well.[213]
  5. [221]
    In my view the plaintiff’s submission that CCTV monitors ought to have been installed is made in hindsight and is not a reasonable response to the risk in this case for a number of reasons. First, I am not satisfied on the evidence that it is therapeutically in the interests of the Patients or in the interest of the staff.  Second even if there was CCTV footage installed, given how the Incident occurred so quickly it is not a relevant response. Third, it is not a reasonable and practical response given the costs and the associated risks to patients.
  6. [222]
    It follows and I find that the installation of CCTV footage in this case would not have avoided the Incident. 

Liability - Conclusion

  1. [223]As discussed above at paragraphs [194] to [198] of these Reasons, that there was a reasonable and practical precaution available to the defendant to reduce the risk in this case, [namely in certain circumstances having a security officer called to the PICU] and if such a system had been implemented, it would have most likely avoided the Incident. It follows and I find that the defendant has breached its duty to the plaintiff by failing to implement such a system.

Contributory Negligence

  1. [224]
    By its written  submissions, the defendant submits that if the Incident occurred as a result of the Patient crouching and or hiding, the Incident was solely caused by the Plaintiff’s own negligence as, contrary to what other staff did, the Plaintiff has failed to adopt all checks. By its pleading the defendant alleges that the plaintiff’s injuries were caused and or contributed by her own negligence for failing to check the chrome ball, failing to request the Patient to back away from the nurses' station, entering the PICU without another nurse present and failing to access the medication room in order to notify Nurse White of her intention to collect rubbish.  In my view there is a tension between the maintaining of allegations of contributory negligence and the concession by the defendant at trial that the plaintiff was not in breach of any of the written guidelines and polices of the PICU.[214] 
  2. [225]
    But given my findings at paragraphs [85(g)] and [88] of these Reasons [that the Patient ran to the PICU door and the plaintiff was not in breach of any of the defendant’s policies and procedure by entering the PICU as she did] it follows and I find that there is no apportionment of liability in this case for contributory negligence.

Quantum

Plaintiff’s circumstances post the Incident

Employment with the defendant

  1. [226]
    After the plaintiff left work on 10 August 2012, she did not return to work again at the hospital until November 2012.  At this time she attempted a two week return to work program undertaking administrative duties.  This attempt to return to work was unsuccessful. On 13 July 2013, the plaintiff made another attempt to return to work at the hospital, this time working in the open side of the PICU, undertaking general nursing duties. But again she was unsuccessful - lasting only two weeks.   
  2. [227]
    There was a lack of evidence about the exact dates and amounts but it was accepted by the parties at trial that the plaintiff received some weekly WorkCover benefits from the date of the Incident until she commenced work Lions Haven for the Aged Limited on 26 May 2015.[215]  
  3. [228]
    The plaintiff made a third and final unsuccessful attempt to return to work at the hospital in November 2013. 
  4. [229]
    The plaintiff has not returned to employment with the defendant since the Incident but she has returned to part-time work as a registered nurse with other hospitals and agencies, working with non-acute mental health and aged-care patients.[216]  
  5. [230]
    After the Incident, the plaintiff decided not to pursue her Masters in nursing and determined that she would embark on a change of career.  At the time of trial she was completing her honours degree in psychology to transition into a role as a general psychologist.[217] 

Change of career decision –studying to be a psychologist

  1. [231]
    In early February 2013, the plaintiff saw Dr Sarah Olson, a Neurosurgeon with Brisbane Sports and Exercise Medicine Specialists, at [it appears] the request of WorkCover Queensland.[218]  Dr Olson was asked to assume that prior to the Incident the plaintiff had been working a 32 hour week.  In Dr Olson’s opinion the plaintiff was then incapacitated for work. Dr Olson said “she was struggling even to sit and had marked back spasms when I saw her. She had quite a lot of difficulty with back extension.” She opined that “I think [the plaintiff] has suffered a discogenic and facet injury” as a result of the Incident.  Dr Olson also observed that the plaintiff did not have any pre-existing back injury, but that her MRI revealed some degenerative change at L4/5 level.  Dr Olson stated that she was going to try an L4/5 epidural steroid and injection and if that was unsuccessful she would proceed to a facet joint injection at L4/5, with the plan to then refer the plaintiff on to the Wesley Back Pain and Rehabilitation program. She gave the plaintiff a “reasonable” prognosis of being able to return to work [avoiding heavy lifting] but would not opine as to whether the injury was stable and stationary until after six months of treatment. 
  2. [232]
    On 6 May 2013 Dr Olson wrote to Dr A Smith [the plaintiffs’ general practitioner] relevantly stating:[219]

“…She has had the rehabilitation program, she’s had the facet ablations and had an epidural steroid injection, but she has ongoing incapacity. I think it is really time now for her to be assessed for total and permanent disablement. ….. and I can’t see Lisa getting back to Psychiatric Nursing and she is going to need to look at something more amenable to this ongoing problem she is going to have in her back”. 

  1. [233]
    The plaintiff’s evidence was that after a consultation with Dr Graham Rice, a pain expert and a psychiatrist, she decided to forgo her Masters in nursing and pursue a career as a psychologist. There was no evidence about how many or when such consultations took place. There was no evidence from Dr Rice adduced at trial.  The plaintiff’s evidence in chief in response to a question about her reasons for doing “that” [deciding to pursue a career as a psychologist] is most instructive in my view. She said it was because: 

“We both felt it would be more suitable, as I- nursing is quite a difficult job and I find it difficult and as I get older, it- I will find it worse, so we thought that psychology would be a better option for me”.[220]   [Emphasis added]

  1. [234]
    The academic transcript for the plaintiff’s Bachelor of Social Science (Psychology) reveals that the plaintiff commenced her online studies at the Swinburne University of Technology in 2014.[221]  
  2. [235]
    The official file notes from Swinburne University dated 6 May 2014 provide that “Lisa has been diagnosed with chronic back pain and PTSD as a result of an attack in a hospital.  She struggles to be in closed, unfamiliar rooms and feels more comfortable at home.”   The evidence was that due to her back problems the plaintiff applied to the University and was granted a personal examination supervisor in her home environment in the 2014 year. 
  3. [236]
    In support of a further application for a personal examination supervisor in her home environment, for the 2015 year, the plaintiff stated in her application dated 16 September 2015 to the University that:[222]

“I experience chronic pain from a partial disc bulge and have hypertrophy in my lower facet joints.  When sitting, due to compression of nerves in my back, I quickly experience nerve pain running down my legs to my feet. I experience this pain as a sharp shooting, numbness, tingling and burning sensation.  I also suffer from an anxiety condition which worsens my pain and ability to concentrate.

…..

…. I am unable to drive to an exam centre as driving itself causes significant pain and anxiety….

….”

[Emphasis added]

  1. [237]
    The Qualified Health Professional Report dated 16 September 2015 attached to the application [stamped by Dr Smith], describes that plaintiff as having a mental health condition and a physical disability and that she has a diagnosis of chronic back pain and depressive/anxiety.  This document recommended that the plaintiff be provided with a personal exam supervisor in her own environment in order to avoid anxiety and depression and to assist with her chronic back pain.  
  2. [238]
    A document entitled “Recommendation for Personal Exam Supervisor” signed by a clinical psychologist, Dr Siavash Bandarian-Balooch dated 18 September 2015 also relevantly states as follows:

Ms Lisa Ringuet initiated therapy with myself on the 18th of September 2015.  During the session, Lisa expressed severe back pain and was unable to sit down without pain for even short durationLisa is currently also experiencing severe levels of psychological distress reducing her concentration.  I recommend that she receive your full support and that Lisa be provided further assistance to a personal exam supervisor in her home environment.” [Emphasis added]

  1. [239]
    The evidence revealed that the plaintiff completed her Bachelor of Social Sciences in psychology externally through Swinburne University at the end of 2016 achieving a grade point average of 6.4.  The plaintiff started her Honours Degree at the beginning of 2018 and she has obtained a distinction for the first two subjects in the first two semesters.
  2. [240]
    The plaintiff accepted and I find that her academic studies required a commitment of 20 hours per week for study and contact hours.[223]  

Employment while studying psychology

  1. [241]
    During the period the plaintiff was asking for special consideration for her university exams, she was painting a very different picture about her mental and physical wellbeing to potential employers.  
  2. [242]
    The evidence was that sometime in 2015, the plaintiff prepared and distributed correspondence to potential employers setting out relevantly as follows:[224]

“After completing my nursing degree, I began employment with Queensland Health in 2010.  After a year of general rotations, I worked in a psychiatric unit until 2014.

I resigned from Queensland Health in early 2014 to study psychology.  I have completed the first 2 years of my psychology degree and am now studying my third year psychology subjects.  I have a part time study load due to credits from my nursing degree. As my study load is part time, I am seeking part time/casual employment as a registered nurse.

You will find me to be a flexible team player, quick to learn, experienced in care plans, medications and all nursing duties.” [Emphasis added]

Part time employment as a registered nurse with Lions Haven for the Aged  

  1. [243]
    On 26 May 2015, the plaintiff obtained a position as a registered nurse with Lions Haven. The plaintiff was not asked how long the shifts were or how many hours this role entailed but the uncontested documentary evidence was that the plaintiff was employed at Lions Haven for a period of four months from 26 May 2015 until 18 September 2015 and she worked a total of 233.5 hours.[225] This equates to approximately 16 hours a week,[226] or two days - assuming she worked on average eight hour shifts.
  2. [244]
    It was accepted by the parties and I find that the evidence establishes that the plaintiff was earning an average of $576.00 net per week. That equates to $288.00 per day. 
  3. [245]
    During the course of her employment with Lions Haven, on 10 July 2015 the plaintiff completed a confidential health assessment Form stating that she had no pre-existing injuries or illnesses that may be affected by the services she intended to provide.[227]  By her answers to the questions posed in the Form, the plaintiff represented to her then employer that she did not have any restrictions performing 12 identified physical functions [including sitting, walking, pushing and lifting]. Although she identified that she had some “tight lower back muscle”.[228]
  4. [246]
    The evidence was that on 18 September 2015, the plaintiff resigned from Lions Haven after being requested to attend a meeting to offer a response to allegations made against her concerning her conduct and her performance.[229]  I find the plaintiff’s resignation from Lions Haven was due to this incident and not attributable to the injuries she suffered in the Incident.[230] 

Mental health nurse with Healthcare  

  1. [247]
    From 23 May 2016 until 30 July 2017, the plaintiff was employed by Healthcare Australia Pty Ltd as a mental health nurse at the Robina and Currumbin Private hospital.  The plaintiff’s work included administering medication, conducting transcranial magnetic stimulation treatments, assisting psychiatrists with motor threshold measurements, conducting risk assessments, crisis interventions and counselling patients.[231]  It was accepted at trial that on average the plaintiff earned the sum of $735.00 net per week in this period.[232] There was no direct evidence of the number of shifts or the hours the plaintiff worked in this role. But assuming she was paid a similar hourly rate to the one she was paid at Lions Haven [i.e. $31.53 per hour], I find the plaintiff was working roughly 24 hours a week. Allowing for the pain the plaintiff described after working 24 hours a week, I assume that the shifts were on average 8 hour shifts. It follows and I find that the plaintiff was earning $245.00 net per week in this job.   

 Mental Health Nurse with Ramsay Health 

  1. [248]
    In July 2017, the plaintiff obtained employment as a mental health nurse with Ramsay Health (Affinity Health Limited). She remained employed in this role at the date of the trial.  It was accepted that the plaintiff works two 12 hour shifts per week and that with penalty rates her average weekly earnings are $1,022.00 net per week.[233] It follows and I find that the plaintiff was earning $511.00 net per day in this role. Assuming the shifts were 8 hour shifts this equates to approximately $341.00 net per day.
  2. [249]
    It is instructive that in a signed and declared Application for employment with Ramsay Health Care dated 12 July 2017, the plaintiff stated that she was seeking part time, casual work of 48 hours a fortnight up to 60 hours a fortnight for all shifts [i.e. day and night - any day of the week].[234] By this Application denied she had any pre-existing medical condition that would impair or limit her ability to safely perform “the inherent requirements” of the job and she specifically denied suffering from past or present back, shoulder, neck, knee or ankle injury.[235]  
  3. [250]
    In September 2017 and then on 12 April 2018, the plaintiff underwent a job performance review with Ramsay Health.  The results of her 2018 review are set out in a document entitled “Performance Development & Review Clinical Employees” dated 12 April 2018.[236] These results show the plaintiff consistently met the standards required across all fields of her employment.  Relevantly her manager’s overall comments stated:[237]

“Lisa has been a reliable and consistent member of the mental health Team. In particular Lisa has come in to perform TMS on her days off to ensure of pts do not have their Treatment delayed or interrupted.”

  1. [251]
    The plaintiff’s stated goals and objectives in this review were to complete her bachelor of psychology, to continue with her current work and to attend to perform workshops. The plaintiff acknowledged that she wanted to apply for a promotion or alternative position within the next two years. In doing so she identified that she wanted to continue nursing and integrate a psychologist role and that she was preparing for this opportunity by completing her bachelor of psychology and renewing her nursing registration.[238]     
  2. [252]
    Against this background it is necessary to consider the medical evidence together with the evidence of the impact of the Incident on the plaintiff’s life in general.  

Medical Evidence

Dr Scott Campbell

Dr Campbell’s first report

  1. [253]
    Dr Campbell first saw the plaintiff on 2 December 2013, some 16 months after the Incident. He recorded the plaintiff’s self-reported complaints at that time to be:
    1. (a)
      Lower back pain associated with the left sciatica occurring daily and rating up to 9/10 on the visual analogue scale.[239]
    2. (b)
      Lower back pain aggravated by physical activities, such as lifting weights greater than 5kgs, bending to pick up items from the floor, looking up to perform overhead work, twisting to the left or right, reaching and domestic chores such as vacuuming, cleaning and hanging out the washing.
    3. (c)
      Restricted with dressing/undressing, shaving her legs, cutting her toenails.
    4. (d)
      A sitting tolerance of five minutes which interfered with her computer work, reading, driving and going to the movies.  
  2. [254]
    Dr Campbell’s clinical examination of the plaintiff on 2 December 2013 revealed:[240] “…a distressed 47-year-old, right handed lady. She walked slowly and cautiously and sat in discomfort.  She preferred to stand and move about through the course of the interview.  She had difficulty getting in and out of the examination chair. Examination of the lumbar spine revealed decreased flexion and extension by 75-80%. There was

central tenderness and guarding. The lower limb power, reflexes and sensation were normal.”

  1. [255]
    Dr Campbell observed that the CT scan lumbar spine dated 4 September 2012 and the MR scan lumbar spine dated 3 December 2012 reported as showing no fractures or disc protrusions. He diagnosed the plaintiff with a musculo-skeletal injury to the lumbar spine.  In accordance with the AMA guides Fifth Edition DRE Category II, Dr Campbell concluded that the plaintiff was suffering an 8% whole person impairment. 
  2. [256]
    In Dr Campbell’s view, further recovery was unlikely and the plaintiff’s current symptoms and restrictions were likely to persist indefinitely.  He assessed her likelihood of a return to work as a registered nurse as poor and that her exposure to repetitive lifting and bending through the course of the work shift, placed her at a risk of further injury and was best avoided.  In Dr Campbell’s opinion, the plaintiff’s planned psychology studies were appropriate as she is best suited to sedentary type work. He opined that the plaintiff “may need to limit her work hours to 15-20 hours per week due to difficulties with sitting, standing and mobilising”.[241]   Dr Campbell suggested the plaintiff’s ongoing pain could be managed by avoiding “aggravating factors”[242] and the taking of painkillers, with physiotherapy sessions reserved for acute exacerbations that are likely to occur from time to time.
  3. [257]
    As my earlier findings reveal, the plaintiff has been able to work as a registered nurse and study for over 40 hours a week since May 2016. It follows that Dr Campbell’s forecast that the plaintiff was unlikely to return to work as a nurse and that she would need to limit any work to 15 to 20 hours a week has not come to fruition. 

Dr Campbell’s second report  

  1. [258]
    In July 2018, Dr Campbell observed that it was six years since the Incident and the plaintiff’s condition had reached its maximum medical improvement.  He also observed the plaintiff sat in discomfort and had to stand and stretch on several occasions through the interview with him.  He recorded the plaintiff’s self-reported complaints at the time of her second consultation with him to be:[243]
    1. (a)
      Lower back pain/stiffness.
    2. (b)
      Lower back pain associated with left leg pain and cramping occurring daily and rating up to 8/10 on the Visual Analogue Scale.  
    3. (c)
      Lower back pain associated with the left sciatica occurring daily and rating   up to 9/10 on the visual analogue scale. 
    4. (d)
      Lower back pain aggravated sitting for 20 minutes, standing in a queue,  driving long distances, dressing, undressing, walking down stairs, cold weather and domestic chores such as vacuuming, sweeping, scrubbing and carrying the laundry basket. Unable to push a lawnmower.
    5. (e)
      Aggravation of her lower back while performing manual tasks such as twisting, bending and reaching while working as a registered nurse.
    6. (f)
      Tolerating pain during the course of a busy shift using painkillers which help.
    7. (g)
      Difficulty sitting through lectures and studying at home resulting in decreased study efficiency. 
  2. [259]
    By his second report, Dr Campbell considered the plaintiff’s condition to be slightly improved since his last review but he maintained his earlier diagnosis of the plaintiff’s injury to be a musculo-skeletal injury to the lumbar spine.  In Dr Campbell’s view the condition was not transient because the plaintiff has ongoing symptoms.[244] In accordance with the AMA Guides Fifth Edition DRE Category II, Dr Campbell’s revised conclusion was that the plaintiff is now suffering a 7% whole person impairment.  He recommended rest, painkillers and a modification of activities to manage the pain and that the plaintiff may benefit from a short course of physiotherapy or alternative therapies.[245]

Dr Richard Williams

Dr Williams’ first report 

  1. [260]
    Dr Williams examined the plaintiff on 16 December 2013 and 18 July 2018 for the defendant.[246]  He recorded the plaintiff’s self-reported complaints at the time of his first consultation with him to be:[247]
    1. (a)
      Persistent left lower back pain, more on the right side, in a discreet distribution with no left leg pain.
    2. (b)
      Pain present every day in the region of the left trochanter. 
    3. (c)
      Pain wakes her at night.
    4. (d)
      Trouble is with prolonged sitting rather than standing.  Pain level was initially 10/10, now approximately 8/10 and at best 5/10.  
    5. (e)
      A need to take up to six Panadeine Forte tablets per day as well as intermittent Ibuprofen.  
  2. [261]
    Dr Williams diagnosed musculo-ligamentous injury lumbar spine – resolved.  He also opined the prognosis to be a resolution of symptoms over a period not exceeding six weeks.[248] 
  3. [262]
    In terms of providing an assessment of impairment in accordance with the AMA Guides Fifth Edition DRE Category II, Dr Williams considered there to be no objective evidence of injury. More particularly he stated as follows:[249]

“The claimant has required an extraordinarily long period away from the work place for what appears to have been a reasonably innocuous cause.  There is no structural abnormality of the lumbar spine evident on very extensive imaging.  In my opinion, the claimant has been capable of return to full employment within six weeks of onset.  There is no justification for further investigation or further treatment, at least not in relation to any work related events.  The claimant’s persistence of symptoms is inexplicable based on the mechanism described.  There would appear to be a significant psychogenic component to her persisting lumbar symptoms.  I note that this has been previously addressed by Dr Graham Rice and the medical assessment tribunal.

The claimant requires no surgical treatment nor is she likely to benefit from persistence with physiotherapy.  I am of the opinion that the claimant has been capable of return to work in normal hours and normal duties as of six weeks after 09 August 2012.  Any persistence of work related incapacity has no relationship to employment, in my opinion.” [Emphasis added]

Dr Williams’ second report

  1. [263]
    After examining the plaintiff again on 18 July 2018, Dr Williams maintained his original diagnosis of a transient musculo-ligamentous strain to the lumbar spine which has been resolved.  He reiterated his earlier view that the mechanism of the injury was not consistent with axial loading to the lumbar spine causing spinal injury.  In doing so he observed as follows:[250]

“I returned to the diagnosis of musculo-ligamentous strain as any specific injury to the lumbar spine which could conceivably have been caused by the mechanism described would be in the nature of an injury of the soft tissue, in other words a self-limiting condition likely to resolve over a period not greater than six weeks.  It is not feasible that symptoms arising in 2012, approaching six years ago, would have persisted to this point based on the incident described.  There is no structural lesion of the spine demonstrated on extensive imaging to account for the persistence of symptoms and disabling nature.  I believe that the claimant’s level of incapacity is considerably overstated by her.  I would not consider her disabled.” [Emphasis added].

  1. [264]
    Dr Williams again assessed the plaintiff with a 0% impairment under the AMA Guide Fifth Edition DRE Category II.   In his view the plaintiff does not require any form of treatment for the injury and there is no pathogenesis for the persistence of symptoms. 

Dr Williams’ opined the plaintiff to be capable of any form of occupation for an “indefinite time period” in the future.[251]

Is the injury ongoing? 

  1. [265]
    Both Dr Campbell and Dr Williams agreed that the plaintiff suffered a musculoligamentous injury to her lumbar spine as a result of the injury. The point of distinction between them is whether this injury has resolved or is ongoing.  The resolution of the differing conclusions of Dr Campbell and Dr Williams is achieved by focusing on their respective foundations.
  2. [266]
    During the course of her evidence in chief the plaintiff agreed that what she had told the “experts” was an accurate account of what occurred to her after the accident “in terms of when you worked and how you worked”.[252] The plaintiff was not asked to confirm if she had read all the reports tendered into evidence by agreement between the parties. She was not taken to any specific part of any of the reports.  Whilst there was no objection to this question by the defendant’s counsel, the plaintiff’s answer in such a context is of limited if any use in my assessment of the underlying facts of this case.  It is too narrow an approach to simply adopt the views of medical practitioners based on the self-reporting of the plaintiff.
  1. [267]
    The court is required to comprehensively consider all of the objective evidence [particularly the documentary evidence] as opposed to the self-reporting assertions of the plaintiff.[253]  As the President of the Queensland Court of Appeal relevantly observed in McGrory v Medina Property Services Pty Limited:[254]  

“[65] … Unlike those experts, the trial judge had the benefit of comprehensive evidence of symptomology given by the applicant which had been supported in material respects by Ms Black and Ms Tucker. Having accepted that evidence the learned trial judge was obliged, as a matter of legal reasoning, to take those findings into account when assessing which of the experts’ opinions he should accept.

   

[70] In a case such as the present, in which the evidence as a whole contains ample material upon which findings of fact can be made about the post-incident symptoms of a plaintiff and in which a submission is expressly made about the significance of that evidence to the ultimate issues of injury caused by negligence, a trial judge who is performing the function of finding facts is obliged to consider that evidence comprehensively. Evidence of the kind given in this case cannot be put to one side so that a conflict between the evidence of medical experts is decided upon a narrow, and possibly mistaken, ground limited to their respective observations.” [Emphasis added]

  1. [268]
    Under cross examination at trial Dr Williams maintained that he remained unable to identify any objective and neurological basis for the plaintiff’s pain based on the circumstances of the Incident.[255]
  2. [269]
    However, by its final submissions, the defendant does not contend that the Incident would not have caused the plaintiff’s injuries.[256] This, I accept was a sensible position to adopt, as it is consistent with the evidence of Dr John Olson, a consultant physician in occupational and environmental medicine.  
  3. [270]
    Dr Olson relevantly opined that:[257]

When pushing, there is a force working to extend the lumbar spine and the person pushing needs to prevent that which means that they would exert force in an opposing manner that flexes the lumbar spine.  Indeed, that would be the internal musculature primarily anterior to the spine involved in preventing extension, the muscles however may not be strong enough and may also end up relying on the strength of the ligaments, both of this are possible causes for injury and are consistent with the onset of chronic back pain, without a very specific diagnosis.  Diagnosis of ligament and muscle injuries are rare in the lumbar spine.  Nearly all diagnostics revolve around injury to the intervertebral disc and/or the facet joint structures.” [Emphasis added].

  1. [271]
    The view that the ongoing nature of the injury and the symptoms complained of by the plaintiff were not consistent with the way the Incident occurred permeated and underpinned both of Dr Williams’ reports. Given that it is now accepted that this assumption is incorrect, the weight to be afforded to these reports is considerably diminished in my view.  
  2. [272]
    Dr Williams accepted under cross examination that the twisting movement of the plaintiff during the course of the struggle may have caused a muscular strain to the lower back, but in his view the effects would have passed within six weeks.[258] He also conceded that the ligaments to the lower back were considered structures responsible for lower back pain and it was possible that at a sub-structural level, there was a micro injury [as described by the plaintiff] that does not typically show on MRI.   
  3. [273]
    Dr Williams accepted that the timeframe for people who continue to suffer the effect of a soft tissue injury can stretch out to years.  He explained that this could be due to the pain response generated by:[259]

“… the – largely, the chronicity of the – long-lasting nature of the pain may become self-perpetuating beyond the physical abnormalities which have been imposed on the particular structure of the spine for reasons which are complex and relate to adjustment problems, adjustment to injury, reliance upon analgesic medications, psychosocial influences and a variety of other influences which are not directly – which don’t directly stem from the physical injury itself.” 

  1. [274]
    Dr Williams accepted that a person who complains of the symptoms usually experienced the pain and in that sense the pain could be described as taking on a “life of its own” which would not have existed but for the original injury, and which could stretch out into the foreseeable future.[260]
  2. [275]
    The plaintiff gave very general and limited evidence about her physical pain and her circumstances in general after the Incident.  She said that when she was first injured “it was extremely painful” but she described her physical condition as having stabilised over time.[261]   During her evidence in chief the plaintiff agreed with her counsel that she had “trouble sitting with her back condition” and described feeling extremely uncomfortable as “though there’s something being squashed in my spine.[262] Her evidence was that she relieved this symptom by standing, wiggling and shifting position.[263]  She tried yoga but it exacerbated her back pain.  
  3. [276]
    The plaintiff had difficulty walking for several years after the accident. So much so that she was unable to walk her two dogs [a German Shepherd and a Foxy-Chihuahua].[264]

The evidence was that she paid for a dog walking service for the period August 2012 until July 2014.[265] She also undertook hydrotherapy – to keep up her swimming to improve her back.[266]

  1. [277]
    The plaintiff’s evidence was that since the Incident she has been unable to maintain some of the hobbies she had previously enjoyed such as camping, boating, fishing and body surfing.  But she is able to maintain a winter and a summer exercise regime.  In winter she attends the gym three times a week to do a half an hour exercise regime comprising a combination of weight-bearing exercises and cardio.[267]  In summer she swims a kilometre two to three times a week [she has always swum and has continued to do so since the Incident].[268] She was a competitive swimmer in her youth.[269]  
  2. [278]
    Dr Sarah Olson a Neurosurgeon with Brisbane Sports and Exercise Medicine Specialists, whom the plaintiff saw in February 2013 [apparently] at the request of WorkCover Queensland, explained why in her view the plaintiff remained uncertified for work six months after the injury but was able to swim 12 laps in a pool daily. Her uncontroverted evidence which I accept was that: “It is well known that working in a pool is very good for backs, in fact I have encouraged Lisa to do that. She notices that her back pain is substantially better in the pool and certainly helps with her core strengthening exercises”.[270]  
  3. [279]
    Nurse Wood had the opportunity to observe the plaintiff after the Incident.[271]  She stays in irregular contact with her.  They catch up every three to six months or so. Nurse Wood’s evidence, which I accept, was mainly consistent with the general evidence from the plaintiff about the debilitating effect of the Incident on her life.  
  4. [280]
    In this period, Nurse Wood observed the plaintiff to be struggling with back pain, on painkillers and constantly holding on to her back.[272]  As a consequence when they met up they would never go out and sit too long, for example, in a cinema seat.  She observed that it was several years before the plaintiff “could sort of sit for a little while”.[273]
  5. [281]
    Under cross examination, the plaintiff rejected the proposition that her back pain had improved significantly by 2015 adding further that “[m]y back still hasn’t improved significantly”.[274] In terms of her current predicament the plaintiff’s evidence was: “I suffer chronic pain, but it is not to the degree at – for example, on the day or on the first couple of months after my injury”.[275]   But later she also accepted that “compared to the first few years after the accident, my back has improved.” Although not significantly.  Her evidence was “I still suffer pain”.[276]
  6. [282]
    In September 2014, the plaintiff was examined by Mr Lee Ng,[277] an Occupational Therapist, and she described her pain as 5 out of 10 and on a bad day increasing as high as 8 out of 10. In particular she said:[278]

“Sometimes it’s a muscular ache… other times it’s a sharp shooting pain… I have a sensation of a cramp in my left outer thigh which is permanent… I also get vibrations underneath my feet… the hips are painful to touch… my pain get progressively worse as the day goes on… come 4.00pm I’m showered and settled on the couch.”

  1. [283]
    In July 2018, Mr Ng assessed the plaintiff again and opined that she had demonstrated “some amelioration of her symptoms in the intervening period of time since my last assessment” which had allowed her to return to flexible work in non-acute mental health settings.[279]
  2. [284]
    I generally accept the plaintiff’s evidence about the variety of symptoms she suffered after the Incident. But in my view she had a tendency on some occasions to exaggerate the nature and extent of these symptoms and on other occasions to down play the obvious inconsistences in the documentary evidence, in order to manipulate the situation to her advantage. For example:
    1. (a)
      At trial the plaintiff’s evidence was that the facet ablations she was given by Dr Sarah Olson [in May 2013 and as discussed below] gave her about 20 minutes of relief. But she told Dr Williams when she saw him on 16 November 2013 that following her treatment by Dr Olson she experienced an improvement of some 50%.[280] 
    2. (b)
      The evidence establishes that in obtaining her Bachelor of Psychology, the plaintiff received support from the university by way of a personal examination supervisor [on the basis of her self-reporting of symptoms that she was experiencing chronic pain, anxiety and depression at the time].  But a number of these statements by the plaintiff exaggerated the extent of her injuries. For example the plaintiff told Dr Bandarian-Balooch that she was unable to sit down without pain for even short durations. This evidence is not consistent with the plaintiff’s work at Lions Haven at the time. The plaintiff’s statement in her letter to the University that she was unable to drive to exams is also exaggerated. Although the plaintiff told Dr Williams and Dr Campbell that she experienced difficulties driving there was no direct evidence from the plaintiff at trial about that and there was no evidence that the plaintiff could not drive to work or that she needed to catch a taxi because driving was too difficult.
    3. (c)
      In her special consideration letter to Swinburne University the plaintiff referred to having a “partial disc bulge”.[281] There was no evidence of this. Indeed the evidence was to the contrary. Dr Campbell’s first report referred to a referral to a neurosurgeon who undertook an MRI scan of the plaintiff’s lumbar spine which showed no fractures or disc protrusions.    
    4. (d)
      When pressed at trial about her lack of candour and transparency in completing the Form [with Lions Haven][282] and that her answers reflected that she was not troubled by such symptoms at the time, the plaintiff said “if I had told them that

I had a back injury and the situation, I would not have been employed.”[283]  At first blush I was inclined to accept and understand why she may have responded as she did despite it not being reflective of the real state of her injuries as she now seeks to maintain they were.  Such a view is consistent with other evidence which I accept, namely that the plaintiff is a hard working woman wanting to engage in meaningful work. But upon reflection and after careful consideration, I do not accept the plaintiff’s evidence on this point because it does not make logical sense. The uncontroversial evidence which I accept is that she had already been employed with Lions Haven for over 6 weeks when she completed the Form. So she had no reason not to tell the truth about what she says was the true state of affairs. 

  1. (e)
    At trial the plaintiff’s evidence was that she was not intending to stay at Lions Haven, that she had issues with the workload as it was 1 nurse to 32 patients and she had to push a trolley around and this exacerbated her back pain.[284]   Whilst I accept the plaintiff may have felt pushed to resign,[285] I do not accept the plaintiff’s uncorroborated evidence that she resigned from Lions Haven because of the work exacerbating her back pain or because of work issues.  The objective evidence which I accept was that the plaintiff resigned from Lions Haven after she was asked to attend a meeting about her work performance.  
  2. (f)
    The plaintiff maintained under cross examination that she had restrictions with bending and lifting before she started at Lions Haven and she was only applying for part-time positions because “that’s what I felt I was physically capable of doing”.[286] Whilst I accept that the plaintiff may have felt restrictions with bending and lifting I do not accept that this was why she was working part-time. In my view the plaintiff chose to work part-time because she was studying psychology at the same time. 
  3. (g)
    In re-examination at trial, the plaintiff was asked about her omission [in the relevant documentation] to tell her then employer Ramsay Health about her back injury and whether she had subsequently told her employer “of anything to do with your back”.[287] In response, the plaintiff said: she had recently told the director of clinical services about her back and the court case; she had spoken to her NUM and told her of the situation surrounding her back and what had happened; and she had also showed another nurse the TENS machine she was wearing.[288]  This evidence was vague and unhelpful [what exactly did the plaintiff say to these people about the state of her back?] and in any event uncorroborated. Accepting it at its highest, it does not in my view, advance the plaintiff’s case. Ultimately the plaintiff said that nothing special had happened in the workplace in terms of what she had reported about her back condition.[289] 
  1. [285]
    On balance, and despite the tension and exaggerations in the plaintiff’s evidence, I accept on an objective view of all of the evidence, the injury to the plaintiff’s lower spine has not resolved. It follows that I prefer the view of Dr Campbell on this issue. But I find the symptoms are not as severe as the plaintiff contends.   

Is the plaintiff’s lumbar spine injury ongoing?

  1. [286]
    I find the injury suffered by the plaintiff as a result of the Incident was an ongoing musculo-ligamentous strain to the lumbar spine. Dr Campbell’s opinion that the plaintiff’s lower back pain was “moderate to severe” was based largely on the self- reporting of the plaintiff. For the reasons outlined above, I find that the plaintiff had a tendency to exaggerate the extent of her ongoing symptoms. The objective evidence which I accept was that from September 2016 the plaintiff was able to maintain a work and study load of over 40 hours a week. 
  2. [287]
    It follows that I do not accept Dr Campbell’s revised conclusion of a 7% whole person impairment. In my view a slightly lower assessment ought to have been made. 

Dr Malcolm Foxcroft - Psychiatrist

  1. [288]
    In his first report, Dr Foxcroft opined that as a result of the Incident, the plaintiff suffered a clinically significant, moderately severe adjustment disorder with depressed and anxious mood and some features of post-traumatic stress.  He observed [from the plaintiff’s self-reporting], that prior to the Incident the plaintiff was functioning well with no evidence of any psychiatric impairment.[290] 
  2. [289]
    Dr Foxcroft assessed a PIRS impairment of 5%.  He allowed 0% for any pre-existing component and some partial incapacity for work.  Dr Foxcroft opined that the plaintiff was unable to return to psychiatric nursing as she would be at risk of anxiety and posttraumatic stress type symptoms.[291]
  3. [290]
    Subsequently, in March 2015 Dr Foxcroft was provided with further material including records and notes about the plaintiff’s circumstances prior to the Incident together with the second report of another psychiatrist, Dr Harvey A. Whiteford.[292] The records contained evidence of a more extensive history of anxiety symptoms and use of anti- depressant medication that had been previously disclosed by the plaintiff.  Dr Foxcroft opined that this material did not change his original diagnosis but that in addition the plaintiff may be suffering from an exacerbation of an existing Generalised Anxiety Disorder.[293] The further records may not have changed Dr Foxcroft’s opinion but in my view, this is another example for the plaintiff’s tendency to play down facts that potentially may not have suited her case.  
  4. [291]
    By his fourth report Dr Foxcroft opined [after examining the plaintiff on 28 July 2018] that the plaintiff had undergone a significant recovery utilising appropriate psychological skills such that her overall permanent impairment had reduced from 5% to 0% under the PIRS.  But it remained his view that the plaintiff was unable to return to full-time work due to her “combined physical and psychological injuries”.[294] 

Dr Harvey A. Whiteford - Psychiatrist

  1. [292]
    During his first examination of the plaintiff, Dr Whiteford observed her mood to be depressed and that she was tearful with mild to clinically significant anxiety throughout

the interview.  He identified the major stressors maintaining the adjustment disorder to be her pain and disability, marital separation and although motivated – her difficulties returning to work.   Consistent with Dr Foxcroft’s opinion, Dr Whiteford assessed a 5% PIRS impairment.  In Dr Whiteford’s view the plaintiff could return to alternative nursing duties [from a psychiatric perspective], but not in an acute mental health unit.[295]  

  1. [293]
    Dr Whiteford’s second report was prepared in September 2014, after he had obtained access to the plaintiff’s general practitioner records.  These records commenced in August 2005 and included references to anxiety, depression, stress, worry, selfmutilation and taking anti-depressants.  Dr Whiteford opined that the plaintiff suffered a generalised anxiety disorder with panic attacks, a condition which has fluctuated over many years in response to life stressors. He observed she had prescribed antianxiety/anti-panic medications over many years.[296]   
  2. [294]
    At the second examination the plaintiff reported to Dr Whiteford that her back pain was unchanged, but she was better at managing it.  She reported taking anti-inflammatory medication [Celebrex] and analgesic medication [Panadeine Forte] when the pain is severe.  From a psychiatric perspective, the plaintiff told Dr Whiteford that she was pretty good, although she still experiences heightened anxiety if she feels threatened or at the thought of the upcoming court appearances.  Despite these concerns the plaintiff has not required any treatment from an anxiety perspective for over two years.[297]  
  3. [295]
    In Dr Whiteford’s opinion once the stressors related to the litigation are resolved, he would not expect there to be any permanent aggravation of the plaintiff’s pre-existing mental disorder.   In Dr Whiteford’s view the plaintiff’s prognosis is fair but given her past history, she is at risk of a relapse of her anxiety disorder if exposed to further trauma in the future.  

Conclusion – plaintiff’s mental health disorder

  1. [296]
    The plaintiff accepted that early in the piece [after the Incident] she sought psychiatric treatment but her evidence was that once she started her psychology course [discussed in detail below], she learnt coping strategies to deal with her psychological issues.[298] Her evidence at trial was that “[c]urrently, I don’t feel that I have a psychiatric condition” and that it had largely resolved.[299]  Nurse Wood’s evidence was that after the Incident the plaintiff was fairly low and struggled “physically and mentally, financially and spiritually”.[300] She described the plaintiff as a little more solemn and not as bright and bubbly as she use to be.  But Nurse Wood’s also said that “once she [the plaintiff] decided she was going to study, she changed her mindset.  Yes, she had an injury, but she was going to university. So I encouraged her to do so”.[301]  
  2. [297]
    This evidence is consistent with counsel for the plaintiff’s submission after the close of evidence at trial that:[302]

“My client accepts that she’s improved considerably from a psychiatric point of view and it’s not contended that she has any lingering psychiatric condition that stops her from working at all, except that it would stop her from working in a mental health facility, as the psychiatrist acknowledged, because it would be a retrigger, a reliving of her previous adjustment disorder.” [Emphasis added]

  1. [298]
    The evidence of both Dr Foxcroft and Dr Whiteford which I accept is that the plaintiff suffered a pre-existing generalised anxiety disorder which was exacerbated by the Incident. Their mutual opinion is that the plaintiff does not have any permanent psychiatric impairment attributable to the Incident.  But I also observe and accept the evidence of both Dr Foxcroft and Dr Whiteford that the plaintiff is at a fair risk of relapse if exposed to further trauma.  Broadly consistent with the views of Dr Foxcroft and Dr Whiteford, Mr Ng opined that the plaintiff’s psychiatric symptoms would rapidly decompensate if exposed to aggressive patients on a more regular basis.[303] 
  2. [299]
    I find that as a result of the Incident the plaintiff is not suited to work in as a nurse in an acute mental health patient setting. But I do not agree that the plaintiff has proved on the balance of probabilities that she is not suited to other nursing roles. The evidence which I accept is to the contrary – that is the plaintiff has been working as a registered nurse in a non-acute setting and without much difficulty for 16 to 24 hours a week since May 2015. 
  3. [300]
    It follows and I find that it was an appropriate and reasonable response to the Incident for the plaintiff to have pursued a career outside of acute mental health nursing in particular a career as a psychologist. The plaintiff’s evidence which I accept is that there has been a significant improvement in her psychiatric state which she attributes to her distancing herself from the workplace where she was injured and the undertaking of her psychology studies that have taught her techniques to manage pain and her anxiety.[304]
  4. [301]
    In my view credit and encouragement ought to be afforded the plaintiff for her sheer determination and tenacity in this regard. 

Plaintiff’s capacity to work as a result of the injuries

  1. [302]
    The evidence as analysed above establishes that the plaintiff returned to work as a registered nurse for 16 hours a week for a period of four months from May 2015.  From May 2016 until the present the plaintiff has worked as a registered nurse for 24 hours a week.  There was no objective evidence that the plaintiff complained about back pain or was unable to adequately undertake the required duties as a result of any physical impediment. Simultaneously the plaintiff was able to undertake university studies in psychology requiring a commitment of approximately 20 hours a week. With the aid of special assistance to enable her to sit her exams from home, the objective evidence which I accept, is that the plaintiff was able to manage her study commitment of 20 hours a week.  It follows and I find that from May 2016 the plaintiff was able to adequately carry out her duties as a registered nurse for 24 hours a week whilst managing a study load of 20 hours a week after the Incident.     
  2. [303]
    The defendant submits that this evidence supports a finding that the plaintiff is able to return to work full-time – either as a registered nurse [in a non-acute mental health environment] or eventually as a psychologist. At first blush there is some force to this submission. But on reflection I have reached the view that it ought to be rejected for three reasons. First, the plaintiff’s decision to study psychology was a direct result of the Incident and as I have found - a reasonable one. She ought not to be penalised for pushing herself to her limits to achieve this goal. Second, as a matter of common sense, studying online in a flexible home environment is very different to working fixed hours in an office or a hospital. Third, the following evidence which on balance I accept, does not support a finding that the plaintiff is able to work full-time:  
    1. (a)
      In July 2017, the plaintiff stated in a signed declaration that she was seeking part time, casual work of 48 hours a fortnight up to 60 hours a fortnight for all shifts [i.e. day and night - any day of the week];[305]
    2. (b)
      The plaintiff’s evidence that she could not work anymore than 24 hours a week because at the end of such a work period she had to rest because her symptoms were painful and she felt “vibrations usually down my left leg.  I get a cramp on my left calf, on the outside of my left leg.  I can get a tingling sensation in my lower back and I have a general broad area back ache”;[306] 
    3. (c)
      At trial, Dr Williams generally agreed with the opinion of Dr Campbell that if the plaintiff suffered the symptoms she described she would be unable to go back to normal hours or duties or practice as a registered nurse.[307] He also opined that if her current symptoms were accepted they would impact on her capacity to work as a clinical psychologist;[308] 
    4. (d)
      Under cross examination, Dr Campbell accepted that the fact the plaintiff was working 24 hours a week as a registered nurse and studying about 20 hours a week meant that the plaintiff’s condition has “certainly improved”.[309]  He also accepted that working as a psychologist was the ideal profession for the plaintiff.  In his second report, Dr Campbell also opined that the plaintiff “should be able to enter the workforce as a psychologist for 24 hours a week.”[310] At one point under cross examination Dr Campbell appeared to accept that allowing for variables the plaintiff would [potentially] be able to work full-time in this role.[311] But later he said that the question of whether the plaintiff would be able to work full-time as a psychologist[312] was more of a dynamic situation, because “although she’s improved at the moment that may not always be the case”.[313] He accepted that a person’s ability to work full-time depended on a combination of things including the level of back pain [which is unpredictable] and their motivation;[314] and 
    5. (e)
      Mr Ng opined that the plaintiff was not capable of managing a full-time workload as a psychologist and that it would be more likely she would need to limit her hours to 24 hours a week [spread out over the week].[315]
  3. [304]
    On the above analysis and given the ongoing nature of the plaintiff’s lumbar spine injury, I am satisfied on the balance of probabilities that the plaintiff is able to work for at least 24 hours a week.  The defendant accepts that the plaintiff was unable to return to work until 26 May 2015.[316] It follows and I find that the plaintiff was able to work as a registered nurse for at least 24 hours a week from 26 May 2015.[317]   
  4. [305]
    However, the fact that the plaintiff was also able to attend to her studies of 20 hours per week cannot be overlooked and in my view needs to be factored into the assessment of the plaintiff’s future economic loss. It is difficult to put a precise figure on this factor (in terms of hours).  But, in my view a fair and reasonable approach is to reflect this extra capacity in the amount of discount to be applied to the plaintiff’s award of damages for future economic loss, as set out below.  

General Damages

  1. [306]
    The plaintiff’s claim for damages for pain, suffering and loss of amenities of life (general damages) fall to be determined under the Workers Compensation & Rehabilitation Regulations 2003 (Qld) (“the Regulations”).[318] 
  2. [307]
    The plaintiff suffered a moderate lumbar spine injury – soft tissue. So the relevant item under the Regulation is Item 92 (ISV range of 5 to 10).  There is no radiological and very little objective evidence of the soft tissue injury. Given my findings that the plaintiff exaggerated the extent of her ongoing symptoms, I find the ISV appropriate is 5.[319]
  3. [308]
    The plaintiff suffered a pre-existing generalised anxiety disorder which was exacerbated by the Incident. I accept that the symptoms the plaintiff suffered as a result of her psychiatric injury were distinct from those she suffered as a result of the injury to her lumbar spine and resulted in a different impact on her enjoyment of life.  In my view the plaintiff’s symptoms were moderate.  The relevant item under the Regulation is Item 12 Moderate Mental Disorder (ISV range of 2 to 10). The plaintiff does not have any permanent psychiatric impairment. I find the appropriate ISV is 2. 
  4. [309]
    As there are multiple injuries, it is appropriate to consider ss 3 and 4 of schedule 8 to the Regulation. I find the injury to the plaintiff’s lumbar spine is the dominant injury. I am satisfied it is appropriate, in reflecting the level of impact of these injuries on the plaintiff, to increase the ISV slightly above the maximum dominant ISV. I find the appropriate ISV for the plaintiff’s multiple injuries is 8.  I therefore assess general damages in the sum of $10,940.00. 

Economic Loss Claims

  1. [310]
    It was difficult to make an exact calculation of the plaintiff’s economic loss on the evidence.  I have done my best in the circumstances.  Overall, I have found it necessary to take a relatively general approach to both past and future economic loss.

Plans to work full-time   

  1. [311]
    The plaintiff’s claim for past and future economic loss are premised on her assertion that at the time of the Incident she was planning to move to full-time work in the future.  The onus is on the plaintiff to satisfy me on the balance of probabilities of this contention. 
  2. [312]
    The plaintiff had been working in the PICU part-time for just over a year at the time of the Incident.  The plaintiff’s evidence was that she intended to increase her hours to fulltime from the time she commenced studying for her master’s degree.  Her evidence about increasing her hours and taking on study at the same time did not make sense to me during the trial.  My attempts to understand it were to no avail.[320] In the absence of a plausible explanation, I reject this contention. 
  3. [313]
    Alternatively it may have been that the plaintiff meant that she was planning to work full-time as a registered nurse upon the completion of her Masters. 
  4. [314]
    The uncontroversial evidence which I accept was that the plaintiff was not working fulltime at the time of the Incident.  She was working part-time, four days a week.[321] There was no evidence of hour many hours a day or even a week this entailed but both parties accepted and I find the plaintiff was earning an average of $884.00 net per week.[322] 
  5. [315]
    The plaintiff gave some very general evidence about the occupations she had undertaken prior to becoming a nurse.  There was no evidence about the number of hours she worked in these positions.[323] There was no evidence that the plaintiff had ever worked full-time in any capacity. There was no suggestion that the plaintiff was in financial strife or that she had any dependants.  There was no evidence about why she had decided to work full-time at the age of 46 in circumstances where she had not worked full-time before.  In my view, the claim by the plaintiff that it was her intention to work full-time is an opportunistic one, distorted and altered by “unconscious bias or wishful thinking or by overmuch discussion of it with others”.[324] It follows that I reject the plaintiff’s evidence that she was intending to work full-time into the future. But I accept and I find that the plaintiff would have continued to work part time over 4 days a week - as she had been at the time of the Incident.  

Past Economic Loss

  1. [316]
    The plaintiff claims past economic loss based on the difference between her anticipated earnings from the date of the Incident until her commencement with Ramsay Health on 1 July 2017, calculated at $884.00 net per week for 253 weeks, totalling the sum of $223,652.04. In my view this calculation is not supported by the evidence and my findings.
  2. [317]
    In my view the starting point is a calculation of the difference between the plaintiff’s anticipated earnings from the date of the Incident until her commencement with Lions Haven on 26 May 2015, calculated at $884.00 net per week for 147 weeks, totalling $129,984.[325]
  3. [318]
    The plaintiff was working 4 days a week earning $884.00 net working as a registered nurse at the time of the Incident.  This equates to $221.00 net per day. She was, as I have found, in a position to return to work as a registered nurse for 24 hours from 26 May 2015. Assuming eight hour shifts this equates to three days a week.  I have rejected her claim that she was going to work full-time but I accept she would have continued on working four days a week. It follows and I find that her loss of earnings from 26 May 2015 is the loss of earnings of 1 day per week. 
  4. [319]
    Between 26 May 2015 and 17 September 2015, [roughly 16 weeks] the plaintiff worked the equivalent of two days a week at Lions Haven earning $288.00 net per day. There was no evidence as to why the plaintiff only worked 16 hours and not 24 hours at Lions Haven or [apart from the letter she sent to prospective employers sometime in 2015] of any active steps undertake by the plaintiff to find a new position after she resigned [her letter of resignation was in evidence] or why it took until May 2016 for the plaintiff to find another job.  In my view, the plaintiff’s loss for the 8 month period between 18 September 2015 and 23 May 2016, can be fairly calculated by allowing a loss of 1 day a week for 32 weeks at a rate of $221.00 net per day [the average daily rate she earnt with the defendant]. This equates to a sum of $7,072.00
  5. [320]
    For just over 13 months between 23 May 2016 and 30 June 2017[326] the plaintiff worked the equivalent of 3 days a week at healthcare earning $245.00 net per day.  In my view, her loss for this period can be fairly calculated by allowing a loss of 1 day a week again at the rate of $221.00 net per day for 53 weeks. This equates to a sum of $11,713.00.
  6. [321]
    From 1 July 2017 until the present, the plaintiff has worked the equivalent of 3 days a week at Ramsay Health earning an average a week of $1,022.00 net or $340 net a day.  This figure is more than the plaintiff’s anticipated earnings per week with the defendant working four days a week. So on one view there is no loss.
  7. [322]
    But I note that the plaintiff also claims a global sum for past economic loss of $50,000.00 as a claim for the loss of opportunity for the plaintiff to advance to a position as a clinical nurse with the defendant. The plaintiff relies on the evidence that she would have advanced either to a registered nurse 7, or clinical nurse 3 by the time of trial.  She contends that either of these roles would have seen her earning a gross base salary of between $86,316.00 and $91,926.00 per annum[327] or average net weekly earnings of approximately $1,245.00 to $1,311.50.[328] This equates to daily rates of $249.00 net and $262.30 net per day. 
  8. [323]
    The plaintiff’s evidence about promotion was that at the time of the Incident she had just been accepted into a 12 month Masters Course in nursing at Griffith University and the completion of this course would assist her in gaining a promotion to a clinical nurse which is a higher grade than a registered nurse.[329]  The plaintiff said she did not think it would take her long to obtain a clinical nurse position.[330] In my view this evidence was pure speculation and not supported by other evidence. Mr Lee Ng’s evidence was that a Masters in nursing does not automatically mean a promotion and that it was a long process “like any other job”.[331]   On an objective view of all of the evidence in this case this plaintiff was a diligent and well respected nurse. At some point in time there is a reasonable likelihood that she would have obtained a promotion.  In the circumstances I consider that some allowance ought to be made for the loss of opportunity for promotion.[332]     
  1. [324]
    In my view the plaintiff’s loss for the 22 month period from 1 July 2017 until the end of May 2019 can be fairly calculated by allowing a loss of one day a week calculated at $250.00 per day for 88 weeks.  This equates to the sum of $22,000.00.
  2. [325]
    I therefore assess the plaintiff’s claim for past economic loss to be $170,000.00.[333]  
  3. [326]
    Pursuant to s 306N(2) of the WCRA, I will allow interest on the sum of $125,161[334] from 26 May 2015 (being the approximate date when the WorkCover benefits ceased),[335] that is for a period of 4 years, at the rate of 1.91%.[336] This equates to the sum of $9,500.00.
  4. [327]
    I will allow a sum for past loss of superannuation calculated at 9.25 % on the past economic loss. This equates to the sum of $16,000.00.[337]

Future economic loss

  1. [328]
    The plaintiff’s claim for future economic loss is based on her intention to complete her Masters in nursing and advance to a clinical nursing positon where it is estimated she would have been earning at least $1,300.00 net per week by the present day. This equates to $260.00 net per day. As a result of the Incident this did not come to fruition. I have found that it was an appropriate and reasonable course for the plaintiff to have retrained as a psychologist. It is expected that upon completion of the plaintiff’s thesis this year she will be eligible to commence work as a general psychologist on a supervised basis. Her earning on a full-time basis in this role wold be approximately $1,126.00 net per week on an entry-level position with her current employer Ramsay Health.[338] This equates to $225.20 net per day. 
  2. [329]
    In my view the plaintiff has established that she has a diminished capacity leading to actual economic loss as a result of the injuries she suffered as a result of the Incident.[339]

This capacity is that she is only able to work three and not four days a week. In my view a fair assessment of this future loss can be made based on a loss of $260.00 net per week for 14 years (until the plaintiff is 67).[340] This results in an amount of $137,540.00.  

  1. [330]
    In my view there ought to be a reasonable discount of this amount allowing for both positive and adverse contingencies in this case.[341] The plaintiff did not have a long term work history as a nurse and the evidence was that she had dabbled in a number of careers over her life.  Further, and as discussed above, the plaintiff was able to manage study of 20 hours a week on top of working 24 hours a week. Whilst studying at home is more flexible, it reveals in my view, some extra capacity to work. It follows and I find that this amount ought to be discounted by 20%. 
  2. [331]
    I therefore assess damages for future economic loss in the sum of $110,000.00.[342] 
  3. [332]
    I allow a sum for future loss of superannuation on the amount of future economic loss at the rate of 11%. This equates to the sum of $12,000.00. 

Special Damages

  1. [333]
    The plaintiff claims the sum of $67,602.01 for special damages. This figure is inclusive of out of pocket pharmaceutical, medical, treatment travel and reskilling expenses including those paid by WorkCover Queensland and Medicare. 
  2. [334]
    The quantum of this claim is not in issue. But the plaintiff’s entitlement was.
  3. [335]
    Given my findings, I accept these amounts are all reasonable and recoverable. 
  4. [336]
    I therefore assess special damages in the sum of $67,602.01.

Future expenses

  1. [337]
    The plaintiff claims that a sum of $20,000.00 as a global loss under this heading.  In my view the evidence does not support such a large award. The plaintiff appears to be treating her back injury by swimming and with some medication.  Her psychiatric injury has virtually resolved. 
  2. [338]
    I accept that some global amount for future special damages is appropriate. I assess damages under this head in the sum of $4,000.00.

Summary of damages assessed

[339]  In summary, damages are assessed as follows:

Head of damage

 

General damages

$  10,940.00

Past Economic Loss

$170,000.00

Interest on past Economic Loss

$    9,500.00

Past Loss of Superannuation

$  16,000.00

Future Economic Loss

$110,000.00

Loss of Future Superannuation

$  12,000.00

Special Damages

$  67,602.01

Future  Damages

$    4,000.00

Subtotal

$400,042.01

Less refund to WorkCover[343]

$  73,729.26

Total

$326,312.75

Orders

  1. [340]
    There will be judgment for the plaintiff in the sum of $326,312.75.
  2. [341]
    I will hear the parties as to costs and to that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one (21) days.

Footnotes

[1] Second further amended statement of claim at [23].

[2] Statement of claim at [23(q) – (ff)].

[3] Statement of claim at [25].

[4] Statement of claim at [5(a)] and [5(b)]; Third further amended defence of the defendant at [2].

[5] Statement of claim at [26] and [27].

[6] Outline of argument on behalf of the plaintiff dated 8 October 2018 at [1], the respective paragraphs of the statement of claim (as footnoted below) were identified in the plaintiff’s counsel’s final oral addresses. 

[7] Statement of claim at [26(l)(i)].

[8] Statement of claim at [26(q)], [26(r)] and [26(t)].

[9] Statement of claim at [26(p)] and [26(t)]

[10] Statement of claim at [26(p)].

[11] Statement of claim at [26(t)].

[12] The plaintiff accepted this was not specifically pleaded but argued it was an extension of [26(t)] and consistent with the principles espoused in McLean v Tedman (1984) 155 CLR 306.

[13] Statement of claim at [26(a)] and [26(l)(ii)].

[14] Statement of claim at [26(s)].

[15] Statement of claim at [26(i)].

[16]Statement of claim at [31].

[17] Defence at [2].

[18] As summarised in the outline of argument on behalf of the plaintiff at [11]-[13].

[19] Defence at [15(q)].

[20] Defence at [15(r)(i)]-[15(r)(iv)].

[21] Defence at [15(t)(i)]-[15(t)(iii)].

[22] Defence at [18(a)]-[18(e)].

[23] Defence at [15(b)(ii)].

[24] Although, by [1] of the outline of submission on quantum of behalf of the defendant dated 8 October 2018 the defendant did not contend that the incident could not have caused the plaintiff’s injuries.

[25] T 1-30.20.

[26] T 1-28.10.

[27] T 1-29.2.

[28] Exhibit 6, application for employment with Pindara Private Hospital.

[29] Exhibit 1, vol 4, tab G at p 27.

[30] See Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at 118; see also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 720.

[31] Fox v Percy (2003) 214 CLR 118 at [31]; Camden v MacKenzie [2008] 1 Qd R 39 at [34]. See also discussion by Bowskill QC DCJ (as she then was) in Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232.

[32] There was no evidence of how long the panel was but photographs in evidence showed the panel to be in the middle of the door and the right height and size for a person to look through to the other side.

[33] Exhibit 2; T 1-18.37 – T 1-18.43.

[34] Zalewski Report dated 30 September 2014 (“Zalewski Report”) [exhibit 1, vol 1, tab A at pp 36-69].

[35] Zalewski Report at p 43.

[36] T 2-99.5.

[37] Exhibit 1, vol 1, tab B at pp 176-318.

[38] T 3-56.40 – T 3-56.45.

[39] T 3-52.12; exhibit 1, vol , tab B at pp 176-318 contains the relevant design and construction documents; exhibit 1, vol 2, tab B pp 464-674 contains the guidelines for Mental Health Facilities in Queensland; exhibit 1, vol 3, tab B pp 675-768 contains the project definition plan for the mental health unit.   

[40] T 1-31.5.

[41] T 1-62.9.

[42] T 1-32.36 – T 1-32.38.

[43] T 1-33.19 – T 1-33.24.

[44] T 1-33.26 – T 1-33.30.

[45] Exhibit 1, vol 2, tab B at pp 319-361.

[46] T 1-30.44.

[47] Exhibit 1, vol 2, tab B at pp 385-419.

[48] Ibid at p 398, [13.11].

[49] Ibid at p 400, [17.0].

[50] Ibid.

[51] Exhibit 1, vol 2, tab B at pp 374-384.

[52] Ibid at p 378.

[53] This paragraph is highlighted in the exhibited version.

[54] Exhibit 18, a letter from the defendant’s solicitor to the plaintiff’s solicitor confirming that Diana Grice undertook a search after she gave evidence but was unable to locate a copy of the 2012 Guidelines.

[55]Exhibit 1, vol 2, tab B at pp 378-382.

[56] T 3-96.33.

[57] Exhibit 1, vol 2, tab B at pp 385-419; T 3-69.4 – T 3-69.8.

[58] T 2-81.28.

[59] T 3-70.19 – T 3-70.35; T 3-69.45.

[60] Nurse O'Donovan had nursed with the plaintiff on a number of occasions.  On the day of the Incident she  was  working  on  the  open  side  of  the  Acute  Young  Adult  Unit.  I  accept  Nurse  O'Donovan’s  evidence  that  she  met  with  the  nursing  director  Diana  Grice  in  September/October  2012  after  she  resigned and told her about her concerns about safety in working in the PICU.

[61] T 3-36.43 – T 3-37.7.

[62] T 2-131.30 – T 2-131.44.

[63] T 3-77.35 – T 3-77.37.

[64] T 3-39.32 – T 3-39.37.

[65] T 3-42.22 – T 3-43.33.

[66] T 3-44.17.

[67] T 4-5.39 – T 4-5.41.

[68] T 4-7.19 – T 4-7.20.

[69] T 3-96.5.

[70] T 3-96.13 – T 3-96.15.

[71] T 2-132.31 – T 2-133.6.

[72] T 2-133.8 – T 2-133.14; T 2-134.41.

[73] T 2-80.9 – T 2-80.17.

[74] T 1-77.37.

[75] T 3-105.10; T 3-105.29.

[76] T 3-111.15 – T 3-111.25.

[77] T 3-40.12 – T 3-40.17.

[78] Zalewski Report at pp 44-45.

[79] T 3-4.29 – T 3-4.41.

[80] T 3-79.28.

[81] Nurse White did not give evidence at the trial. There was also no evidence from any of the PICU nurses on duty before the plaintiff and Nurse White took over their shift prior to the Incident.

[82] T 1-16.46 – T 1-16.47.

[83] Exhibit 1, vol 1, tab B at pp 115-116.

[84] Ibid.

[85] T 1-74.37 – T 1-74.46.

[86] T 1-74.26.

[87] T 3-106.11 – T 3-106. 14.

[88] Exhibit 9.

[89] T 1-31.44 – T 1-31.47.

[90] It  was admitted on the pleadings, statement of claim at [23(ff)] and defence at [12(a)],  that the Patient was subdued and removed to a seclusion room in the Child and Youth Psychiatric Unit where he was administered medication as the seclusion room in the locked unit was already occupied and therefore was unavailable at the time of the Incident.

[91] T 1-74.30 – T 1-74.31.

[92] Exhibit 1, vol 1, tab B at p 114.

[93] Ibid.

[94] T 1-34.12 – T 1-34.40.

[95] T 1-36.14 – T 1-36.16.

[96] T 1-77.4; T 1-76.5 – T 1-76.7.

[97] Exhibit 1, vol 1, tab A at pp 1 and 8.

[98] T 2-80.4; T 2-80.11 – T 2-80.13. 

[99] T 1-42.21.

[100] T 1-79.38.

[101] T 1-79.36 – T 1-80.6.

[102] T 1-80.32 – T 1-80.40.

[103] T 3-97.23 – T 3-97.28.

[104] Exhibit 1, vol 1, tab A at p 2.

[105] T 1-81.18 – T 1-81.26.

[106] T 1-62.27.

[107] T 2-79.22.

[108] T 1-34.19.

[109] T 1-43.3. 

[110] Statement of Nurse Scott Calvird [exhibit 1, vol 1, tab B at p 17].

[111] T 3-72.23; T 3-72.22.

[112] T 1-34.19.

[113] T 2-78.20.

[114] Exhibit 1, vol 1, tab A at p 3.

[115] T 1-76.17 – T 1-76.20.

[116] T 2-130.7; T 2-128.31; T2-131.23.

[117] Exhibit 1, vol 1, tab B at pp 15-16.

[118] Dr Campbell’s first report dated 2 December 2013 is located at exhibit 1, vol 3, tab C at pp 26-34; Dr Campbell’s second report dated 25 July 2018 is located at exhibit 1, vol 3, tab C at pp 35-42.

[119] Dr Williams provided two reports to the court. Dr Williams’first report dated 9 January 2014 is at exhibit 1, vol 3, tab C at pp 74-83; Dr Williams’second report dated 20 July 2018 is at exhibit 1, vol 3, tab C at pp 84-92.

[120] Dr Foxcroft’s first report dated 18 December 2013 is located at exhibit 1, vol 3, tab C at pp 1-17; Dr Foxcroft’s second report dated 24 March 2015 is located at exhibit 1, vol 3, tab C at pp 18-22; Dr Foxcroft’s third report dated 2 June 2015 is located at   exhibit 1, vol 3, tab C pp 23-25. This report was prepared following a review of the Patient’s medical records.  Dr Foxcroft’s fourth report dated 27 July 2018 is at exhibit 1, vol 3, tab C at pp 25.1-25.10.

[121] T 1-89.15.

[122] Dr Whiteford’s first report dated 28 January 2014 is located at exhibit 1, vol 3, tab C at pp 93-102.

[123] Dr Whiteford’s second report dated 24 July 2018 is located at exhibit 1, vol 3, tab C at pp 107-118.

[124] Outline of submission on quantum on behalf of the defendant at [1].

[125] As observed by Judge Bowskill (as her Honour then was) with reference to Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318 per Windeyer J (with whom McTiernan, Kitto, Taylor and Owen JJ agreed) in Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 at [146].

[126] (1964) 112 CLR 316 at 319.

[127] See also Czatyrko v Edith Cowan University (2015) 79 ALJR 839 at [12].

[128] Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12].

[129] Kondis v State Transport Authority (1984) 154 CLR 672 at 680, 687-688 per Mason J. 

[130] Perkovic v McDonnell Industries Pty Ltd (1987) 45 SASR 544 at 554; Rands v McNeil [1955] 1 QB 253 at 257 per Lord Denning.

[131] Ibid Perkovic at 554.

[132] Turner v South Australia (1982) 42 ALR 669 at 670.

[133] Brisbane Youth Service Inc v Beven [2017] QCA 211 at [166].

[134] Although  these  observations  were  given  in  the  context  of  his  dissenting  judgment,  they  are  observations consistent with established principles. In Beven McMurdo JA reached the view that the reasoning of the Trial Judge was incorrect.

[135] [2017] QCA 211 at [186].

[136] Rudd  v  Starbucks  Coffee  Company  (Australia)  Pty  Ltd [2015]  QDC  232  at  [147]  with  reference  to  Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]–[48].

[137] Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]-[48].

[138] (2003) 215 CLR 317 at [38].

[139] As helpfully explained by Judge Bowskill QC (as her Honour then was) in Rudd v Starbucks Coffee Company  (Australia)  Pty  Ltd  [2015]  QDC  232  at  [148]  with  reference  to  Adeels  Palace  Pty  Ltd  v  Moubarak (2009) 239 CLR 420 at [11], [15], [27], [39] and [41] and Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [22] and [23].

[140] Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 at [149].

[141] [2005] QCA 228 at [15].

[142] See Lusk v Sapwell [2012] 1 Qd R 507 at [17]-[20] and [22]; Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [22] per Fraser JA, referring to Adeels Palace Pty ltd v Moubarak (2009) 239 CLR 420 at [31] and Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126]-[129].  See also Erickson v Bagley [2015] VSCA 220 at [35] per Kyrou and Kaye JJA.

[143] As discussed by Judge Bowskill QC (as she then was) in Rudd v Starbucks Coffee Company (Australia) Pty  Ltd [2015] QDC 232 at [157] with reference to Erickson v Bagley [2015] VSCA 220 at [46].

[144] Exhibit 1, vol 2, tab B at pp 378-384.

[145] See defence at [7]-[11] and Zalewski Report at p 43.

[146] Zalewski Report at p 44.

[147] Exhibit 1, vol 1, tab B at pp 42-175, contained the records in respect to the Patient.

[148] As summarised in the Zalewski Report at p 43.

[149] Ibid.

[150] Exhibit 1, vol 1, tab B at pp 69-70.

[151] Zalewski Report at p 43.

[152] T 3-27.12 – T 3-27.16.

[153] Exhibit 1, vol 1, tab B at p 115.

[154] Exhibit 1, vol 1, tab B at p 116.

[155] T 2-124.2 – T 2-124.7.

[156] T 2-124.36 – T 2-124.40.

[157] [2015] QDC 314 at [92]; with reference to Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]–[37] per de Jersey CJ; Woolworths Limited v Perrins[2015] QCA 207 at [173]; and Wolters v The University of the Sunshine Coast [2012] QSC 298 at [128]–[13].

[158] See  for  example  Southern  Cross  Mining  Management  Pty  Ltd  v  Ensham  Resources  Pty  Ltd  [2004] QSC 457 at [15] and Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd & Ors [2015] QSC 271 at [23].

[159] Findlay v State of Victoria [2009] VSCA 294 at [2] and [3].

[160] Ibid.

[161] Statement of claim at [29].

[162] [2015]  QSC  65  citing  with  approval  the  observations  of  Maxwell  P  in  Findlay  v  State  of  Victoria [2009] VSCA 294. A similar approach was taken in a strike out application by Jackson J in Graham & Linda Huddy Nominees  Pty Ltd & Anor  v Byrne & Ors  [2016] QSC 221  at [29] and  [31]  in  the  context of s 11 of the  Civil Liability Act 2003 (Qld)which is similar in terms to s 305D of the WCRA.

[163] Although it is not pleaded the plaintiff relies on a broad allegation that she should have been provided with clear instruction (guideline or risk assessment) as to the safe way to enter the PICU. I have dealt with the inadequacy of this type of allegation at paras [140]-[146] of these Reasons.

[164] T 5-30.2 – T 5-30.5.

[165] Zalewski Report at p 57.

[166] Section 305C of the Workers Compensation Rehabilitation Act 2003 (Qld).

[167] T 1-55.4 – T 1-55.10.

[168] T 1-22.1 – T 1-22.30; T 1-50.1 – T 1-59.14.

[169] T 3-80.20.

[170] T 3-80.25.

[171] See paras [39], [40], [42]-[43] of these Reasons.

[172] T 3-109.12 – T 3-109.13.

[173] T 1-55.26 – T 1-55.29.

[174] T 3-81.10 – T 3-81.18.

[175] T 2-99.24 – T 2-99.26.

[176] Zalewski Report at p 55.

[177] T 4-12.44 – T 4-13.4.

[178] Zalewski Report at p 55.

[179] T 2-99.45 – T 2-99.47.

[180] T 2-99.35 – T 2-99.38.

[181] T 2-107.15.

[182] T 3-87.13 – T 3-87.14.

[183] T 3-83.30 – T 3-83.35.

[184] T 3-88.13 – T 3-88.16.

[185] T 3-84.17 – T 3-84.23.

[186] T 3-84.19 – T 3-84.23.

[187] T 3-84.1 – T 3-84.5.

[188] T 3-84.42 – T 3-84.46; T 3-78.44 –T 3-78.45; T 3-88.1 – T 3-88.2.

[189] T 3-85.1 – T 3-85.4.

[190] T 3-87.35 – T 3-87.40.

[191] See in para [116] of these Reasons.

[192] See the summary at paras [118]-[124] of these Reasons.

[193] Reply to outline of argument on behalf of the defendant dated 11 October 2018 at [24].

[194] The act was described as spontaneous by counsel for the defendant on a number of occasions during the course of the trial; T 2-99.38; T 5-7.1.

[195] T 3-87.8 – T 3-87.9.

[196] Statement of claim at [26(p)].

[197] Reply to outline of argument on behalf of the defendant at para 15.

[198] T 1-81.8 – T 1-81.16.

[199] T 1-81.45 – T 1-81.11.

[200] See at para [48] of these Reasons.

[201] T 5-29.28 – T 5-29.30.

[202] Exhibit 1, vol 1, tab B at pp 115-116.

[203] T 3-88.26 – T 3-88.27.

[204] T 3-89.47 – T 3-90.2.

[205] T 3-92.1 – T 3-92.2.

[206] T 5-25.1 – T 5-25.26.

[207] T 1-92.34 – T 1-92.36.

[208] Outline of argument on behalf of the plaintiff at [99], with reference to the Zalewski Report at p 55.

[209] Reply to outline of argument on behalf of the defendant at [22(ii)].

[210] Exhibit 1, vol 1, tab A at p 56

[211] T 4-3.33 – T 4-3.37.

[212] T 3-64.30 – T 3-64.38.

[213] T 4-4.1 – T 4-4.6.

[214] As discussed in para [43] of these Reasons.

[215] The exact amount per week of these benefits was not apparent from the evidence. But the fact that benefits were received up until 26 May 2015 was accepted by defence counsel during trial submissions, see T 5-2.25; see also the schedule of damages by the plaintiff at footnote 2.

[216] There was no evidence of the dates or circumstances but the schedule of damages relied upon by the plaintiff at trial included that the plaintiff was also employed at one point as an academic officer, marking papers with ACS Distance Education for three 8 hour shifts for which she was paid $30.00 per hour; schedule of damages by the plaintiff at p 2.

[217] T 2-57.4 – T 2-57.11.

[218] Dr Olson’s report [undated but stated to have been typed on 12 February 2013] is located atexhibit 1, vol 4, tab D at pp 116-118. Dr Olson was not called to give oral evidence at trial and only part of his report was admitted into evidence during the course of the trial.

[219] Dr Olson’s report at p 119.

[220] T 1-66.35 – T 1-66.38.

[221] Exhibit 14.

[222] Part of letter contained in exhibit 14.

[223] T 2-2.42 – T 2-2.46.

[224] Exhibit 1, vol 4, tab G at p 28.

[225] Exhibit 1, vol 4, tab G at p 30. 

[226] Exhibit 1, vol, tab G at p 29.  Her annual salary was $62,303.28, her hourly rate was $31.53 and that for example for the fortnightly pay period 31 August 2015 until 13 September 2015 she worked 32 hours. 

[227] Exhibit 1, vol 4, tab G at p 27.

[228] As set out in para [17] of these Reasons. 

[229] Exhibit 10.

[230] Although I accept that the plaintiff found employment at Lions Haven in the first place because she was no longer working for the defendant as a result of the Incident.  

[231] T 2-57.18 – T 2-57.24.

[232] Exhibit 1, vol 4, tab E at pp 2-3.

[233] Ibid.

[234] Exhibit 6.

[235] Exhibit 6 at pp 3-4.

[236] Exhibit 8.

[237] Ibid.

[238] Ibid at p 4.

[239] Dr Campbell’s first report at p 27 under the heading “Current Status”.

[240] Dr Campbell’s first report at p 28 under the heading “Clinical Examination”.

[241] Dr Campbell’s first report at p 30, [4].

[242] Ibid at [5], although he did not state what there might be. 

[243] Dr Campbell’s second report at p 36.

[244] T 2-22.24 – T 2-22.29.

[245] Dr Campbell’s second report at p 39.

[246] Dr Williams’ first report at pp 74-83; Dr Williams’ second report at pp 84-92.

[247] Dr Williams’ first report at p 76.

[248] Dr Williams’ first report at p 78.

[249] Ibid.

[250] Dr Williams’ second report at p 89.

[251] Ibid.

[252] T 1-65.34 – T 1-65.37.

[253] In reliance on Farnham v Pruden & RACQ Insurance Limited (ACN 009 704 152) [2015] QDC 141 and Farnham v Pruden & Anor [2016] QCA 18.

[254] [2017] QCA 234 at [65]-[70].

[255] T 2-39.1 – T 2-39.45.

[256] Outline of submission on quantum on behalf of the defendant at [1].

[257] Dr Olson’s report at p 181.

[258] T 2-34.23 – T 2-34.34.

[259] T 2-39.18 – T 2-39.24.

[260] T 2-39.20 – T 2-39.45.

[261] T 1-67.15 – T 1-67.18.

[262] T 1-68.43 – T 1-68.44.

[263] T 1-68.46.

[264] T 1-71.6 – T 1-71.14.

[265] Plaintiff’s schedule of past special damages is located at exhibit 1, vol 4, tab F at pp 1-3. This extract is at p 1. 

[266] T 1-71.45 – T 1-71.47.

[267] T 1-50.11 – T 2-50.46.

[268] T 2-50.41 – T 2-50.46.

[269] T 1-46.10 – T 1-46.15.

[270] Dr Olson’s report at p 18, [14].

[271] Nurse Wood was one of plaintiff’s name referee’s in her post Incident CV [exhibit 7] and in other job related correspondence [exhibit 1, vol 4, tab G at p 28.].

[272] T 2-122.8 – T 2-122.13; T 2-123.15 – T 2-123.16.

[273] T2-123.35 – T 2-123.36.

[274] T 2-52.23 – T 2-52.25.

[275] T 1-67.17 – T   1-67.18

[276] T 2-58.3 – T 2-58.5.

[277] Mr Ng’s first report is located at exhibit 1, vol 3, tab C at pp 43-55.

[278] Mr Ng’s first report at p 47, [21].

[279] Mr Ng’s second report is located at exhibit 1, vol 3, tab C at pp 56-73. This extract is at p 67, [48].

[280] Dr Williams’ first report at p 76.

[281] As set out in para [234] of these Reasons.

[282] Exhibit 1, vol 4, tab G at pp 27 and 28.

[283] T 2-53.31 – T 2-53.32.

[284] T 2-54.33 – T 2-54.35.

[285] T 2-54.12 – T 2-54.26.

[286] T 2-52.1 – T 2-52.10.

[287] T 2-82.42.

[288] T 2-82.44 – T 2-83.7.

[289] T 2-83.9 – T 2-83.10.

[290] Dr Foxcroft’s first report at pp 16 and 17.

[291] T 1-98.5.

[292] Dr Whiteford’s second report at pp 107-118.

[293] Dr Foxcroft’s second report at p 20.

[294] Dr Foxcroft’s fourth report at 25.9 and 25.10.

[295] Dr Whiteford’s first report at pp 93-102.

[296] Dr Whiteford’s second report at pp 107-118.

[297] Dr Whiteford’s second report at p 112.

[298] T 1-67.1 – T 1-67.3.

[299] T 1-66.43 – T 1-66.44 and T 1-67.10 – T 1-67.11.

[300] T 2-122.29 – T 2-122.43.

[301] T 2-122.43 – T 2-122.46.

[302] T 5-38.14 – T 5-38.17.

[303] Mr Ng’s second report at p 66, [45].

[304] T 1-94.1.

[305] Exhibit 6.

[306] T 1-68.1 – T 1-68.15.

[307] T 2-42.23.

[308] T 2-47.10.

[309] T 2-15.8 – T 2-15.13.

[310] Ibid.

[311] Dr Campbell was interrupted in his answer but ultimately, he appeared to accept this proposition; see T 2-16.23 – T 2-16.29.

[312] T 2-17.1 – T 2-17.6.

[313] T 2-18.4.

[314] T 2-23.36 – T 2-23.46.

[315] Mr Ng’s second report at p 66, [46].

[316] See outline of submissions of quantum on behalf of the defendant at [71(a)].

[317] The defendant accepts that the plaintiff was unable to return to work until this date, see outline of submissions of quantum on behalf of the defendant at [71(a)].

[318] As the injury occurred in occurred in August 2012 the Relevant Table is Table 3.

[319] See schedule 8 of the Workers Compensation & Rehabilitation Regulations 2003 (Qld).

[320] T 1-29.35 – T 1-29.45.

[321] T1-28.14.

[322] Exhibit 1, vol 4, tab E at p 2, as evidenced by her net weekly earnings in the 2012 financial year.

[323] T 1-26.29 – T 1-26.40.

[324] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431.

[325] As stated earlier in the Reasons, this date is accepted by the defendant as the date the plaintiff was able to return to work.   

[326] I have brought this date forward one month from July 2017 to allow for the apparent overlap between dates of the plaintiff’s employment with Healthcare and Ramsay Health.

[327] Exhibit 15.

[328] Schedule of damages of the plaintiff at p 3.

[329] T 1-28.10 – T 1-28.36.

[330] T 1-29.1 – T 1-29.3.

[331] T 2-31.8 – T 2-31.18.

[332] This approach is distinguishable and does not in my view offend the principles espoused by the High Court in Todorovic v Waller (1981) 150 CLR 402 as discussed in Woolworths Limited v Grimshaw[2016] QCA 274 at [67]-[69].

[333] I have rounded this figure down. I have also taken into account in the past economic loss calculation  that the plaintiff earnt a small amount from her job at ACS Distance Education.

[334] Allowing for the WorkCover Statutory payment of $44,839.00 as submitted on p 3 of the schedule of damages by the plaintiff under the heading “interest on past economic loss”. The Workcover payment history in evidence at exhibit 1, vol 4, tab F at p 18 refers to the figure of $46,434.92 for weekly benefits and lump sum. But the plaintiff submitted on p 3 of the schedule of damages by the plaintiff (without objection from the defendant) that the amount of the statutory payments to be deducted was $44,839.00, so I have used the figure in the plaintiff’s submission to calculate interest.

[335] See footnote 211 of these Reasons.

[336] The plaintiff sought a rate of 2%, the defendant submitted a rate of 1.91% was appropriate.

[337] I have rounded this figure up but I am not allowing interest on past loss of superannuation.

[338] Schedule of damages by the plaintiff at p 3 and schedule A- Allied Health Employers Rates provided by Ramsay Health.

[339] Malec v JC HuttonPty Ltd(1990) 169 CLR 638; cf Soogyung Kim v Xiaoxia Liu & Anor [2017] QDC 167 at [90]-[95].

[340] On the 5% Table of Multiplier the multiplier is 529.

[341] See the discussion by Henry J in Qantas Airways Limited v Fisher [2014] QCA 329 at [74]-[77].

[342] Rounded down.

[343] Exhibit 1, vol 4, tab F at p 18, WorkCover Queensland Refund schedule.

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Editorial Notes

  • Published Case Name:

    Ringuet v State of Queensland

  • Shortened Case Name:

    Ringuet v State of Queensland

  • MNC:

    [2019] QDC 91

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    06 Jun 2019

Appeal Status

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