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Wilson v Gold Coast Hospital and Health Service[2023] QSC 135

Wilson v Gold Coast Hospital and Health Service[2023] QSC 135

SUPREME COURT OF QUEENSLAND

CITATION:

Trinet Ruth Wilson v Gold Coast Hospital and Health Service [2023] QSC 135

PARTIES:

Trinet Ruth WILSON

(plaintiff)

v

Gold Coast Hospital and Health Service

(defendant)

FILE NO/S:

No 3390 of 2020

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court of Brisbane

DELIVERED ON:

23 June 2023

DELIVERED AT:

Brisbane

HEARING DATES:

5 – 8 December 2022

13 December 2022

20 – 21 February 2023

JUDGE:

Ryan J

ORDER:

Judgment for the plaintiff in the sum of $1,634,418.55.

The parties are to provide written submissions on costs within 21 days.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE – SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – where the plaintiff was employed as a nurse by the defendant – where a high proportion of patients on her ward suffered from dementia or delirium, causing them to behave aggressively, or to be combative to care – where the plaintiff was not trained in patient restraint nor was she instructed not to take part in patient restraint – where a disruptive patient with dementia required restraint to receive medication – where a call for the assistance of security officers was made – where two security officers arrived – where the plaintiff and the two security officers restrained the patient on her bed to allow another nurse to inject the patient in the thigh with medication – where the plaintiff restrained the patient’s legs and the security officers held the patient’s arms (one arm each) – where the patient kicked at the plaintiff and threw something at her when her limbs were released – where the plaintiff injured her sacroiliac joint when she quickly moved out of the way of the kick and the object being thrown – whether the defendant breached the duty of care it owed to the plaintiff including by failing to instruct her not to take part in the restraint of a patient – whether the defendant breached the duty of care it owed to the plaintiff by the failure of the two security officers to call for a third once they appreciated that the patient required restraint

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where plaintiff had previous issues with her back requiring hybrid surgery on her spine – where imaging showed pre-existing degeneration of the plaintiff’s sacroiliac joint – whether the change to her biomechanics as a consequence of the hybrid surgery added to her vulnerability to permanent injury of her sacroiliac joint – whether the degeneration of sacroiliac joint was likely to become painfully symptomatic within five to ten years of the workplace incident anyway

Workers Compensation and Rehabilitation Act 2003 (Qld)

Workers Compensation and Rehabilitation Regulation 2014 (Qld)

French v QBE [2011] QSC 105, cited

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, cited

Peebles v Workcover Queensland [2020] QSC 106, cited

Peebles v Workcover Queensland [2021] QCA 21, cited

Reddock v S T & T Pty Ltd & Anor [2022] QSC 293, considered

Stokes v House With No Steps [2016] QSC 79, considered

COUNSEL:

D Aktinson KC for the plaintiff

R Morton for the defendant

SOLICITORS:

Murphy Schmidt for the plaintiff

BT Lawyers for the defendant

Table of Contents

Overview5

The plaintiff – assessment of credibility and reliability6

The plaintiff before the injury6

The SMU at Robina8

The plaintiff’s recollection of her training9

The plaintiff’s understanding of a “Code Black”10

Cross-examination of the plaintiff about her training and Code Blacks10

11 March 2016 – the day before the incident11

12 March 2016 – the day of the incident11

Other evidence of the incident14

Cross-examination of the plaintiff about the incident14

The plaintiff’s attempts to work following the incident15

Treatment and therapies undertaken by the plaintiff16

The plaintiff’s current state17

Patient M18

Security responses to calls for assistance by nurses on the SMU and their violence prevention training21

Evidence of Mr Macdonald22

Occupational violence prevention training22

Documentary exhibits relevant to staff training22

OVRATs25

Security responses to calls for assistance27

The training of nurses to keep themselves safe29

Evidence of Paul McGrotty29

Expert evidence about training of nursing staff in restraint31

Dr Catherine Daniel – plaintiff’s nursing expert31

Dr Helene Metcalfe – defendant’s nursing expert38

Dr Daniel and Dr Metcalfe – conclave report40

Evidence of medical experts41

Dr Labrom – plaintiff’s expert – Adult and Paediatric Spinal Surgeon41

Evidence in chief of Dr Labrom41

Cross-examination of Dr Labrom48

Dr Gallie – defendant’s doctor – Orthopaedic Surgeon52

Cross-examination of Dr Gallie53

Dr O'Toole – defendant’s occupational and environmental medical expert57

Cross-examination of Dr O'Toole59

The articles produced by Dr O'Toole60

Dr O'Toole’s interpretation of the articles63

Dr Labrom’s comment on the articles63

Evidence of psychiatric injury64

Dr Lockwood – plaintiff’s psychiatrist64

Dr Chalk – defendant’s psychiatrist65

Dr Lockwood and Dr Chalk’s “conclave” report65

Other report65

Ms Nancy Stephenson – Plaintiff’s Senior Occupational Therapist65

Factual findings about the workplace incident and the response66

Liability67

The foreseeable risk68

A not insignificant risk68

Reasonably practicable precautions69

Breach of duty & causation73

Quantum76

General damages78

Past economic loss79

Interest on past economic loss80

Past Superannuation Loss80

Future Economic Loss80

Future superannuation84

Fox v Wood damages84

Past expenses84

Future medicals85

Future travel expenses86

Future pharmaceuticals86

Total award86

Overview

  1. [1]
    The plaintiff, Ms Trinet Wilson, a registered nurse, was employed by the defendant hospital and health service at the Robina Hospital, Gold Coast Hospital and Health Service. She was injured at work while taking part in the restraint of a patient with dementia, who had been difficult, disruptive, acting out physically, and refusing medication. The injury resulted in very painful symptoms from which the plaintiff has never obtained relief. She is unable to work or take part in activities she previously enjoyed. She is depressed.
  1. [2]
    She claimed damages for personal injury from the defendant. She alleged that it was negligent in a variety of ways including (but not only) in its failure to instruct her that she should leave the restraint of a patient to security officers.
  1. [3]
    The defendant’s final position[1] was that the plaintiff ought to fail in her claim, because:
    1. (i)
      There was no risk of injury of which the defendant knew, or ought reasonably to have known. Nor was there a risk of injury that was not insignificant;
    2. (ii)
      Even if there was a not insignificant risk of injury, a reasonable person in the defendant’s position would not have taken the steps the plaintiff postulated it ought to have taken to guard against that risk of injury;

or

  1. (iii)
    The plaintiff had not proved that any step the defendant should have taken would have (not could or might have) prevented her injury.
  1. [4]
    Further, the defendant argued that, because the plaintiff had: (a) hybrid surgery, involving spinal fusion at L5/S1 and disc replacement at L4/L5 before the workplace incident, and (b) a degenerate sacroiliac joint, even if she had not been injured at work, within the next five to ten years, she was likely to have suffered similar symptoms to those she suffered after the work incident, which would have interfered with her ability to work and to enjoy life in any event.
  1. [5]
    I found that the defendant was negligent in failing to instruct the plaintiff not to be involved in the physical restraint of a patient. Had the plaintiff been so instructed, she would not have been holding the patient’s legs. She would not have been in the way of the patient’s kicks nor would she have been in the “firing line” for the item which the plaintiff threw at her. Instead, she would have been at the patient’s head, reassuring her while those trained in restraint restrained her, and she would not have been injured.
  1. [6]
    Additionally, I found that the defendant was negligent because of the failure of the two security officers who attended the ward (to assist clinical staff in the management of the patient) to call for a third to take part in the restraint, rather than the plaintiff. Had the security officers called for a third to take part in the restraint, then, for the same reasons as above, the plaintiff would not have been injured.
  1. [7]
    I calculated damages at $1,634,418.55.
  1. [8]
    My reasons follow.
  1. [9]
    I will hear the parties as to costs by way of their written submissions, to be provided by e-mail to my associate within 21 days of the delivery of this judgment.

The plaintiff – assessment of credibility and reliability

  1. [10]
    Ms Wilson was an impressive witness. I found her to be credible and reliable. She presented as earnest and honest. Her testimony was not challenged in any significant way. Her description of the make-up of patients on her ward, and their difficult behaviours, was corroborated by the defendant hospital’s own records. She described the workplace incident in a consistent way over time, during her many assessments by various specialists.
  1. [11]
    Also, she seemed to me to be in physical discomfort at times during her testimony and as she sat in the back of the court throughout the trial.

The plaintiff before the injury

  1. [12]
    Ms Wilson was born on 22 July 1976. She has not had an easy life. She completed year 9 while living at home but ran away not long thereafter. At the beginning of year 10, aged 15, she was in a car accident. She was hospitalised for treatment for four or five days before returning to live with her parents, who promised her that her home life would be better. It was not, and she left again at 16.
  1. [13]
    A homeless teenager, she got “into trouble” and did “whatever [she] could” to survive, including sex work. She fell pregnant – still homeless – at 18. Her first child was born in November 1994. He “saved” her. Upon his birth, she “turned her life around”. She changed her lifestyle and focused on education, so that she could provide for him. She decided to become a registered nurse. She was inspired to that calling by the kindness of one of the nurses who looked after her when she was hospitalised after her car accident.
  1. [14]
    In her words, she then “worked her arse off” to become a registered nurse. There was no exaggeration in that statement. From the late 1990s onwards, as a young mother, with no more than a grade 9 education, she did everything she had to do, and could do, to win a university place in a nursing degree. She became an assistant in nursing in 2001. She worked at an aged care facility from 2001 until 2005. She was awarded a scholarship to complete a diploma in nursing in 2006. On her third attempt, she achieved a place in a university nursing degree in 2006. She graduated in 2012.
  1. [15]
    Over the years of her study, she had three more children: born in 1999, 2005 and 2006. The father of her two youngest children was a violent man.
  1. [16]
    In 2012, the plaintiff was living in crisis accommodation with her four children. Physically, she was then capable of everything. She was fit and healthy. She was raising young children and coping with the physical demands of parenting. She enjoyed the beach, football, yoga, and Zumba.
  1. [17]
    She had no issues with her right sacroiliac joint before the incident the subject of this claim. However, she had past sciatic pain. In 1999, she experienced pain down her leg as she picked up her son from the floor. She was told she had herniated discs which had been aggravated by lifting her children. She saw doctors about it: Dr Tang in 2000/2001; Dr Cochrane in about 2010; and Dr Cleaver in 2014. Dr Cleaver advised the plaintiff that she needed surgery, but she could not then afford it. The gap fee was between $30,000 and $36,000.
  1. [18]
    Meanwhile, in January 2013, she started work as a graduate nurse at the Robina Hospital. It was her “dream job”. She had a supportive nurse unit manager and “great girls” around her. There was nothing she could not do as a nurse. She worked about 31 hours per week – including afternoon, night, and weekend shifts for which she was paid penalty rates. At times, she acted as team leader. She was a preceptor for nursing students. She received awards in praise of the way in which she conducted herself as a nurse, including for her personality and her compassion.
  1. [19]
    She returned to see Dr Cleaver in 2015. By then, her disc pain had worsened. She had saved $19,000 but Dr Cleaver agreed to bulk bill her surgery.
  1. [20]
    On 31 July 2015, Dr Cleaver performed hybrid surgery on the plaintiff. He fused her L5 and S1 vertebra and placed a prosthetic disc at L4/L5. From the plaintiff’s point of view, the surgery was a success. Within about eight weeks, she was back at work, with a full patient load. She could do “everything”. She was living on acreage. She was able to mow and use a whipper-snipper and a chain saw. She could carry logs. She was able to renovate her house. She used her stand-up paddle board. She walked her dog. She played with her children, including on their trampoline. Any nerve pain she had previously experienced was gone.
  1. [21]
    At that stage, her plans for her future were to continue nursing, with a view to working full-time when her children were old enough. She was attracted to rural nursing or nursing in Indigenous communities. She had a special interest in wound management and diabetic care. She considered a graduate certificate in the latter. But in whatever capacity, she was going to be a nurse “forever”.

The SMU at Robina

  1. [22]
    The plaintiff worked in the Specialised Medical Unit (SMU) at the Robina Hospital.
  1. [23]
    The SMU was a 24-bed, medical ward with a “mixed bag” of patients. It was a busy ward, requiring “heavy work”. From the plaintiff’s perspective (confirmed elsewhere), most of the patients on the ward were “old” – over 65/70. The older patients, who made up 25 – 30 per cent, sometimes more, of the patients on the ward, included those transferred from nursing homes with medical problems like urinary tract infections or pressure sores. Often, those patients suffered from dementia or delirium. There were lots of “behaviours” on the ward – meaning patients who behaved aggressively, or who wandered, or who were confused (because of their dementia or delirium).
  1. [24]
    On every shift, the nurses would “cop” verbal abuse from patients. On every second shift, a nurse would be “slapped or bitten or punched” or have something thrown at them. As day became night, “behaviours” increased.
  1. [25]
    Before the incident, the plaintiff had been involved in the restraint of patients a few times. She had been involved in tying a patient’s hands to the bed, on doctor’s orders; re-directing patients back to their rooms; or holding a door shut to prevent a patient from entering a certain area. While providing personal care to some patients, she was required to take care to avoid being punched. She had also served as the re-assurer of patients who had been restrained by security officers for the purpose of receiving their medications.
  1. [26]
    In about January 2016, the plaintiff noticed that many more agitated patients, or patients with dementia or “behaviours”, were placed on the ward than when she started in 2013. (This observation was confirmed by other evidence.) She understood that the SMU received four or five patients a week from “GARU”, the geriatric acute rehabilitation unit. These patients were medically stable, but they were aggressive and confused and required full nursing care. The plaintiff observed that the SMU, a noisy, acute ward, was not a good place for them to be.

The plaintiff’s recollection of her training

  1. [27]
    The plaintiff recalled a “couple of orientation days” upon commencing work as a graduate nurse at Robina. She recalled sessions on manual handling, rosters, the union, Q Super, and the hospital computer system. She recalled “one little course about aggressive behaviour management”. She was not taught how to safely restrain a patient to give them medication or for any other reason. (Other evidence confirmed that SMU nurses were not trained in patient restraint.) The plaintiff was never instructed not to assist in the restraint of a patient. The plaintiff remembered being taught how to get out of a wrist hold; how to “de-escalate” situations; how not to be “cornered”; and the importance of knowing where the exits to a space were.
  1. [28]
    Evidence of the training provided to the plaintiff was tendered. PLA37 showed that on 22 January 2013, the plaintiff completed “OVP verbal skills” and “OVP awareness” training. However, the defendant did not suggest that the plaintiff had been trained in patient restraint. Nor did the defendant suggest that the plaintiff had been instructednot to engage in patient restraint. Indeed, the parties agreed (paragraph 15 of the Issues Not in Dispute) that the plaintiff had not been trained “in respect to restraint of an aggressive or agitated patient in order to give an intramuscular injection or similar, whether individually or as part of a team”.

The plaintiff’s understanding of a “Code Black”

  1. [29]
    The plaintiff understood a Code Black situation to be a situation in which there was a “threat to staff, patients, surroundings or the person themselves: the person is becoming quite aggressive and violent and it’s a dangerous situation and we need security”. She understood that there was a phone number to call to cause three security guards to come to the ward to assist. She had seen that happen “many times … at least once a month, sometimes more”. Other evidence established that that phone number was “222”.
  1. [30]
    She understood that Code Blacks were called as a last resort: the presence of security officers could be terrifying for the patients. Nurses would do all they could to de- escalate matters first.
  1. [31]
    The plaintiff had been involved in a Code Black during which she gave the relevant patient an injection. She had been involved in other Code Blacks as the nurse re- assuring the patient.
  1. [32]
    Before the incident the subject of this claim, she had never restrained a patient’s limbs during a Code Black.

Cross-examination of the plaintiff about her training and Code Blacks

  1. [33]
    Cross-examination confirmed that the plaintiff had undertaken a course in “basic personal safety” and “occupational violence prevention”. She recalled being told that her safety was to be her number one priority. She was not sure about the sort of activities she engaged in whilst being taught about “violence prevention” although she recalled practicing getting out of another person’s grip.
  1. [34]
    She acknowledged that the usual procedure for a nurse dealing with an agitated patient on the SMU was to attempt to calm the patient down non-physically, by re- directing them, whilst maintaining the nurse’s personal safety. If physical intervention was required, the procedure was to call a Code Black. The plaintiff “just knew that … you call a number and security would come … and it was a Code Black”. She understood that a Code Black was to be called when a patient was presenting as a risk to staff, other patients, themselves, or the environment. She understood that, while waiting for security, a nurse ought to stay out of harm’s way, and protect other patients.
  1. [35]
    The plaintiff herself did not ever call a Code Black, though she had been involved in them. She said that three security officers attended every Code Black she was aware of. She disagreed that, on occasion, two officers turned up and, depending on the situation, might call for the attendance of a third.

11 March 2016 – the day before the incident

  1. [36]
    On 11 March 2016, the plaintiff was experiencing no “trouble” after the operation performed by Dr Cleaver. She had no problems with her pelvis or her sacroiliac joint.

12 March 2016 – the day of the incident

  1. [37]
    On 12 March 2016, the plaintiff was rostered to work from 1 pm until 9.30 pm.
  1. [38]
    At the “safety scrum” of nurses at the beginning of her shift, the plaintiff was told that the patient who later kicked out at her, M, had “had” a couple of Code Blacks previously and had been quite aggressive to other nurses. The plaintiff was told that M had grabbed her “special” (her one-on-one nurse) by the throat and kicked and scratched her. The plaintiff and the other nurses were aware that M could escalate. They were concerned to ensure that M did not hurt other patients or staff. M was not allocated to the plaintiff for that shift.
  1. [39]
    The staff skill mix on the afternoon/night of 12 March 2016 was, in the plaintiff’s opinion, “really bad”. It included two new graduate nurses, in their second month on the ward; a pregnant, enrolled nurse; a clinical nurse; the plaintiff and another registered nurse, X.
  1. [40]
    The patients on the ward included a man in bed 16 with an acquired brain injury. He was being nursed while lying on a mattress on the floor, with a security officer present. Three or four patients had dementia and were wandering “non-stop” around the ward. There was a very sick woman in her 20s. The plaintiff herself was nursing a “little, really anxious lady”.
  1. [41]
    M tried to get into the room of the anxious woman. The anxious woman was terrified. The plaintiff held the door shut so that M could not enter the woman’s room. The plaintiff kept diverting M to the lounge. M saw the security guard at bed 16 and made a “bee line” for him. The patient in bed 16 was dangerous. The plaintiff diverted M again. But this went on and on. M was escalating and becoming really agitated because the plaintiff would not allow her to go into room 16. Also, M was stiff- arming and pushing other dementia patients who were walking around the ward.
  1. [42]
    M was trying to “do things” at nurse X’s end of the ward as well. X and the plaintiff discussed what they ought to do about M: “And someone said that a Code Black had been called”. The plaintiff did not call the Code Black but, from her point of view, it was definitely a Code Black situation. The plaintiff, X, and another clinical nurse tried to distract M. She was due for anti-psychotic medication, but she refused it and smacked it out of the hands of the nurse who was attempting to administer it. The plaintiff offered her biscuits, but she smashed them. She smashed a cup of tea which had been made for her onto the floor. She was throwing magazines, which were in the lounge, at the television.
  1. [43]
    The plaintiff thought that the nurse assigned to M was a new graduate nurse, who was overwhelmed. That nurse was sitting at a desk, crying.
  1. [44]
    The plaintiff and X had M in the lounge area, waiting for security to arrive. The plaintiff had her chart. It was about 6 pm.
  1. [45]
    Two security officers (men) arrived, rather than three, which the plaintiff thought was unusual. She and X left the security officers to watch M while they went into the treatment room to prepare an intra-muscular injection for M which would/should have the effect of calming her. X drew it up into the syringe.
  1. [46]
    The security officers marched/dragged M back to her room. She was really elevated and resisting. The security officers got M onto the bed. M was a falls risk, so the bed was “super low”: probably 40 centimetres off the ground.
  1. [47]
    Each security officer held one of M’s arms as they stood either side of her at the head of the bed. M’s legs were “flying”. She was kicking and thrashing about. X was holding the “fairly biggish” needle. The plaintiff had no time to lift the bed to waist height, in accordance with “proper” manual handling requirements, because M was so elevated and angry. There was no time to close the curtains around M.
  1. [48]
    The plaintiff bent “right over” the base of M’s bed. She put her hands around M’s ankles, pushing them to keep her legs straight, so that she would not move while X injected her thigh. There was no one else available to restrain M. M was glaring at the plaintiff as if the plaintiff was the one “causing all of the pain”.
  1. [49]
    Before the restraint, there was no discussion about the role of the security officers or the nurses in the restraint.
  1. [50]
    Once M’s legs were as still as they could be, X gave her the injection. After the injection was given, the plaintiff made sure that X was safe and the sharp was out of the way. Then the plaintiff and the security guards let go at the same time. The timing of the letting go had not been discussed or co-ordinated. The plaintiff continued –

Well, I’m still down at the ground and I’m still – as I’m coming up, [M] has got both her legs up in a – like a tabletop position. Both feet, like, nearly connect with my face and I’ve managed to, like, come from this position and I arched back really quick and I felt her feet. And then I noticed she had thrown like, her arm movement, like she was throwing something, so I’ve twisted – so I’ve gone and then twisted.

…. I felt uncomfortable. I was uncomfortable. There was discomfort, yeah.

  1. [51]
    The plaintiff left M’s room because her other patients needed care.
  1. [52]
    The plaintiff disconnected the antibiotics of the young woman patient and squatted down to flush the patient’s cannula. Then, it was “like a labour contraction”. It was something the plaintiff had never felt before. The pain was from her “right sacroiliac through into [her] groin”. It radiated to the other side, down her legs. It took her breath away. She was stuck on the floor, holding on to the bed. It was very painful.
  1. [53]
    The plaintiff was locked in that position for a minute or so. She managed to get up, perhaps with the help of another nurse. She sat at the nurses’ station – unsure of what had occurred. After about ten minutes, she started her medication round. While giving an injection to one of her patients, the plaintiff bent over a little and experienced a spasm – and then another one. Other nurses had to help her with her patients. She was unable to conduct a handover. All she could do was sit at the desk until new nurses arrived for the next shift. When her shift was over, the plaintiff went home. She had a bath, took some Valium, and went to bed. The pain was “pretty crazy”.
  1. [54]
    The plaintiff was not reprimanded for her role in M’s restraint.

Other evidence of the incident

  1. [55]
    Neither the security guards, nor registered nurse X, nor any other person present on the ward at the relevant time were called.
  1. [56]
    A security incident details document was tendered. It was created at 18:43 hours by Brian Foley (one of the two security officers who restrained M). The incident was said to have occurred at 18:00 hours. The incident type was identified as “patient aggressive”. The reporting means were stated to be “phone”. The incident was described as follows (errors as per original) –

Psos called to H1 E as female patient with early onset dementia was wandering around the ward and into a male patients room who has been aggressive. For the safety of the patient Psos were required to direct patient back to her room, where she was given IM meds to help settle her down. She was lightly restrained by PSOS in order that meds could be given safely. Psos stood by for a time before being stood down.[2]

  1. [57]
    Maree Krug, the nurse unit manager of the SMU, completed a workplace incident report and an incident investigation report which were also tendered. Those documents added little to the information above, although Ms Krug’s documents confirmed the increase in the number of aggressive patients being managed in acute units like the SMU.

Cross-examination of the plaintiff about the incident

  1. [58]
    Under cross-examination, the plaintiff agreed that patient M was petite and about 59 years old. She was very disruptive. She would wander. The security officers who turned up on 12 March 2016 were each bigger and stronger than M. M was very agitated.
  1. [59]
    The plaintiff explained how she held M’s legs so that X could give her the injection intramuscularly. It was suggested to the plaintiff that, in fact, each of the security guards were holding M’s thighs steady with one hand, while they held an arm with their other hand.[3] The plaintiff said “no”. It was suggested to her that she might not have seen what the security officers did, but she maintained they were holding M’s arms only.
  1. [60]
    The plaintiff was not contradicted by the defendant’s evidence about what she said the security officers did during the incident. And, notwithstanding the propositions put to the plaintiff during cross-examination, the defendant did not run a case that it was the security officers, and not the plaintiff, who held M’s legs.
  1. [61]
    The plaintiff agreed that she had to stay out of a patient’s “strike” range. She confirmed that M “brought her legs up and kicked them out towards [her] face”. She confirmed that, as a reflex, she went back and then twisted away because she believed M was about to throw something.

The plaintiff’s attempts to work following the incident

  1. [62]
    The plaintiff was keen to work the next day because it was a Sunday and penalty rates applied. She started work at 8 am. She made it through the safety scrum. She completed the second or third round of medication. Then, she went to unlock a drawer with a key which was around her neck and “it happened again”; “out of nowhere”. She was stuck in a position. She returned to the nurses’ station to sit down. She could not recall whether she completed her shift.
  1. [63]
    The plaintiff called in sick the next day – Monday – and then had three days off. She returned to work on Friday, with a lighter patient load. She was able to get through a couple of shifts thereafter but found that she was still having spasms when she stood or sat still. Squatting down at the nurses’ station eased the pain. She did not think she was able to finish her Sunday shift.
  1. [64]
    She presented at John Flynn Hospital the next day (Monday). She had a CT scan and was told that everything was fine.
  1. [65]
    She again attempted work but only lasted one shift (Easter Sunday). She picked a folder off the desk and suffered another spasm. She had to lay in an empty bed.
  1. [66]
    She tried to work again in July 2016, in accordance with a “suitable duties plan” involving short shifts, three times a week. She was not doing anything on those shifts, other than making patients cups of tea, but she still suffered from spasms. Although it upset her to do so, she had to admit that she could not continue.

Treatment and therapies undertaken by the plaintiff

  1. [67]
    A few weeks after the incident, the plaintiff saw Dr Cleaver for follow up. He told her she had inflamed the relevant area and that things would be right in a couple of weeks.
  1. [68]
    She saw a physiotherapist, who suggested there was an issue with her sacroiliac joint. Cortisone injections (by Dr Cleaver) into the joint gave her relief for about nine days. But the plaintiff’s Workcover ceased, and she was unable to continue to receive the injections.
  1. [69]
    In other efforts to ease her pain, the plaintiff tried physiotherapy, hydrotherapy, a sacroiliac belt, pilates, acupuncture, yoga, a TENS machine, and hot and cold gel packs. She attended a pain clinic.
  1. [70]
    She saw Dr McEntee who suggested fusion surgery to stabilise her sacroiliac joint because, as the plaintiff understood it, the pain was a consequence of its movement/instability. The plaintiff self-funded fusion surgery on 12 June 2017.
  1. [71]
    After a five-day hospital stay, and an inability to bear weight for a few weeks, the plaintiff was free of spasms or pain for three to four weeks – although she was experiencing post operative pain. A week after follow up with Dr McEntee, and off crutches, “out of nowhere”, at a careers’ expo with her children, the dragging sensation in the plaintiff’s groin returned, followed by a spasm. She was devastated and embarrassed. Things were back to how they had been. In part, her embarrassment was over involuntary noises she made at the onset of pain).
  1. [72]
    Dr McEntee continued for about a year to try to assist the plaintiff to no avail.[4]
  1. [73]
    Dr McEntee’s notes explained that he performed right sided sacroiliac joint fusion on the plaintiff. His approach was through the right gluteal region, and he placed two metallic rods across the sacroiliac joint. On 25 July 2017, at review, Dr McEntee noted that some of the plaintiff’s symptoms had resolved but the plaintiff complained of a persistent feeling of burning and cold in her right foot. Dr McEntee diagnosed her with a sympathetic nervous system disorder affecting her right lower extremities.

The plaintiff’s current state

  1. [74]
    Despite everything she has tried, the plaintiff’s pain has persisted.
  1. [75]
    The plaintiff experiences a deep aching or dragging sensation in her groin which signals that a spasm is coming. If she continues to move, she can avoid the spasms, which occur when the plaintiff is sitting still, or standing, or lying flat. The spasms happen between 5 and twenty times a day – although she can “postpone” them. Crouching, curling and squatting eases the aching. The pain is mostly in her pelvis and her hip.
  1. [76]
    Her situation now is worse than it was in 2016 because she has de-conditioned. Her worst symptom is the spasming. The aching (in the right sacroiliac joint) and dragging sensation (in the groin) are constant. There is also numbness in the joint.
  1. [77]
    The effects of the sacroiliac surgery include pain when she lays on her back. Her foot is like ice: “stinging cold”/frozen. Because of her altered gait, she has developed bursitis. She limps when she walks. She has gained 30 kilograms since the incident because she is unable to exercise. Her mental health has deteriorated. She feels she cannot do anything. She is sad and irritable. She feels that she is not a good mother and that her children must look after her. She has nothing to look forward to.
  1. [78]
    The medication she takes for pain makes her drowsy. No anti-depressant which she has tried has improved her mood. She cannot retain information. She is forgetful. She cannot read. And she cannot work as a nurse – the profession she loved so much.
  1. [79]
    The plaintiff receives a disability support pension and a family tax benefit. She receives $1500 a fortnight. Her rent, per fortnight, is $1100. She supplements the difference ($400) by drawing from her superannuation. Obviously, she is under financial pressure.
  1. [80]
    She said she would do anything to go back to work. However, she is unable to drive long distances, sit for long periods of time, or stand for periods of time. Her medication leaves her feeling “doughy” and affects her memory and concentration. She also struggles to concentrate because she is always focused on what is happening to her groin and right buttock. Putting up with the pain is exhausting.
  1. [81]
    She applies a “pacing” method during the day – meaning she does a little, then rests, then does a little, then rests et cetera. She rarely leaves her house. She fears spasms in public. She is stressed by the prospect that they will occur (while she is out) and that she will have nowhere to lie down. Also, if she remains at home, she can take her medication and not have to worry about driving (whilst she is on it).
  1. [82]
    She broke up with her partner a few years ago. She believes that she has nothing to give him.
  1. [83]
    Had the plaintiff not been injured, her intention was to work as a clinical nurse, in the SMU, as many hours as she could (bearing in mind the ages of her children). She planned to work as long as possible: as she said, “til I drop, pretty much”.
  1. [84]
    The defendant did not suggest that it was “commercially … or medically practicable” for the plaintiff to return to work: “certainly not as a registered nurse”. The defendant acknowledged that, at best, the plaintiff might obtain “ad hoc” low-paying work in the future.

Patient M

  1. [85]
    M was a difficult patient and the subject of other “incidents” on the SMU in the days prior to 12 March 2016 including those which involved her lashing out or behaving aggressively, and which required security to control or restrain her.
  1. [86]
    On 29 February 2016, M’s partner reported that M had become more confused and aggressive over the past few weeks. Progress notes made by staff of the defendant’s emergency department stated that the plaintiff was a 58-year-old female with “confusion, aggressive behaviour, cognitive decline … partner complaints of worsening of behaviour and agitation … visual hallucination”.
  1. [87]
    On 1 March 2016, it was recorded that M was “[a] [f]alls risk, [a] confused at risk, [with] cognitive impairment, challenging behaviour”. A nurse special was requested for her.
  1. [88]
    On the same date it was recorded that M had attacked her partner physically: “[N] tried to calm her down with words however … M had been hitting him early in the day, hitting him in the head for no reason”.
  1. [89]
    On 2 March 2016, the notes record, “Significant dementia … agitation, aggression towards her carer … hugging nurses, lifting up shirt in hall … consistent with a fronto- temporal dementia?”
  1. [90]
    On 10 March 2016, a nurse special request was made because of M’s “challenging behaviour, absconding risk, confused at risk, wanderer”.
  1. [91]
    On 10 March 2016, M was involved in a Code Black incident. The incident report stated (my emphasis) –

Psos responded to Code Black at SMU. A confused female patient with an acquired brain injury had grabbed a nurse special around the throat as she left her room. Psos spoke to the patient and continuously had to redirect her as she was wandering around. Nursing staff called for the doctor to attend the ward and medication was prescribed. Initially the patient refused to take the medication but after a continued effort by nursing staff she did eventually take it. The patient was still being rude and confrontational towards her nurse special so Psos remained in attendance until the medication began to take effect. Psos were then called to AAU to deal with another aggressive patient.

  1. [92]
    Three security officers attended at this Code Black event, which was notified via pager.
  1. [93]
    Other notes for 10 March 2016 recorded that –

At approximately 0530, patient became agitated and aggressive towards nurse special and primary nurse. Patient walking down the hall yelling at special. Primary nurse offered assistance to patient in trying to calm her down. Patient then became aggressive towards nursing staff, shoulder barging when walking. Primary nurse advised special to keep distance whilst phoning CTC. Primary nurse heard and (sic) bang and seen AIN special pushing and kicking patient away. Code Black initiated by primary nurse. AIN special states patient grabbed her by the throat, she pushed and kicked patient to get her off. Security came to assist. Patient still agitated. NIC trying to given (sic) patient PRN medications. Security still in place ATOR … patient still agitated and aggressive ATOR.

  1. [94]
    On 10 March 2016, at 18:10 hours, the following Code Black incident occurred –

PSO’s called to escort patient [M] back to ward as she was wandering around H1 courtyard. Patient was returned to ward with PSO’s and nursing staff via wheelchair. Once back on the ward patient was verbally aggressive and agitated wanting to leave her room/ward. Medical staff advised that patient had been placed under guardianship act. PSO’s had to restrain patient on med [?? bed] twice while IM medication was administered. Patients partner was called by medical staff and arrived on ward and entered room with patient. PSO’s were stood down by medical staff once patient settled.

  1. [95]
    Three security officers attended this incident. The incident was reported by “phone”. I note that this incident was wrongly recorded as “visitor aggressive” incident type. I note that the three PSOs were involved in M’s restraint for the purposes of administering medication to her.
  1. [96]
    Other notes about M’s behaviour on 10 March 2016 (as agreed by the parties) stated:

On 10 March 2016, a Code Black was called due to M’s behaviour with the notes recording:

  1. (i)
    ‘Nurse for mH1E tried to verbally de-escalate the situation however the patient lunged at her before being restrained by security and returned to the ward. On review of the notes had a similar episode last night requiring a Code Black;
  2. (ii)
    Contained by security when arriving on ward, being verbally and physically aggressive towards nursing and security staff;
  3. (iii)
    At approx. 0530 patient became agitated and aggressive towards nurse special and primary nurse. Patient walking down the hall yelling at special. Primary nurse offered assistance to patient in trying to calm her down. Patient then became aggressive towards nursing staff, shoulder barging when walking;
  4. (iv)
    Primary nurse advised AIN special to keep distance while phoning CTC. Primary nurse heard bang and seen AIN special pushing and kicking patient away. Code Black initiated by primary nurse;
  5. (v)
    AIN special states the patient grabbed her by the throat, she pushed and kicked patient to get her off. Security came to assist, patient still agitated;
  6. (vi)
    NIC trying to give patient PRN medication. Security still in place ATOR. Patient still agitated and aggressive ATOR;
  7. (vii)
    Patient not on ward. Security called to escort patent (sic) back to HI garden outside from public lift. Patient return on wheelchair physically aggressive and verbal towards staff Code Black called. RMO placed patient on adult guardianship act, partner [N] was called and CTC and RMO spoke on the phone for verbal permission to administer IM haloperidol as patient refusing oral meds.”
  1. [97]
    An addendum to the progress notes made on 10 March 2016 stated (my emphasis) –

Collateral from security … Found in courtyard saving she was “being kept against her will”. Nurse from H1 E tried to verbally de-escalate the situation, however the patient lunged at her before being restrained by security and returned to the ward … On review had a similar episode last night requiring a Code Black … ATSP for aggression and agitation … Contained by security when arrived on ward, being verbally and physically aggressive towards nursing and security staff … Attempted to verbally talk her down and convince her to take oral evening medication however she refused.

  1. [98]
    On 11 March 2016, the notes record:

Alzheimer’s disease with BPSD – ongoing poor sleep and agitation with tendency towards physical aggression.

  1. [99]
    Notes for 12 March 2016 stated (my emphasis) –

Patient alert and confused this a.m. All medications as charted. M started pacing corridor this a.m. slightly agitated … gave M some space to allow her to calm down … around 11.30 M escalated to high agitation, refusing to take medications orally to help her calm down. She then took the patient chart so we were unable to see what else she could have. Tried contacting med to see if he could calm her, no answer. The Special was able to reason with M a little – getting the chart off her and security was called. Special reported no trigger as such for the agitation, tried reasoning with M assuring her that she was going home on Monday with no effect. Security came and escorted M back to her room, with their encouragement were able to get .5 mg Risperidone s/l into M.

  1. [100]
    Neither party relied on the provisions concerning business records and documentary hearsay in the Evidence Act 1977 (Qld) when it came to these or other hospital documents.

Security responses to calls for assistance by nurses on the SMU and their violence prevention training

  1. [101]
    The evidence produced by the defendant about the way in which it assessed the risks on the SMU between 2013 and 2016, and the consequences of that assessment for the training of staff, revealed that the defendant failed to fulfil its own requirements for the assessment of occupational risk.
  1. [102]
    I infer that, because the defendant failed to conduct a timely assessment of the occupational violence risk on the SMU, it failed to appreciate that, by 2016, the patient mix on the SMU posed a significant risk of physical harm to staff. I infer – although it was not explored in evidence – that had the defendant been aware of the risk to staff on the SMU it would have appropriately trained its staff in occupational violence protection. However, the plaintiff does not rely upon the defendant’s failure to properly assess the risk to its staff on the SMU prior to her injury as a relevant breach in this case.

Evidence of Mr Macdonald

  1. [103]
    The defendant called Raymond Macdonald, who has been employed by it since 2005. He is currently employed as a senior work health and safety practitioner and occupational violence prevention facilitator. He had been an occupational violence prevention facilitator since 2007.

Occupational violence prevention training

  1. [104]
    Mr Macdonald was asked about occupational violence prevention training (OVPT) between 2013 and 2016. He said that, at that time, there was a tiered approach to training –
  1. (a)
    The “base level” of OVPT was delivered online and was mandatory for all staff.
  2. (b)
    A level up, “[f]rontline staff, so nursing and other frontline workers like allied health” were required to undertake occupational violence awareness and verbal de-escalation training. That training was delivered over two days, as part of the orientation to the health service.
  3. (c)
    Then, in accordance with a staff member’s “risk profile”, there would be additional training in basic personal safety strategy.
  1. [105]
    A risk profile assessment was conducted as part of a training needs analysis which was “embedded into the occupational violence risk assessments” (OVRATs) undertaken at the relevant time. The analysis would be based on the profile of a unit.
  1. [106]
    For Code Black responders – that is, security staff and the clinical team co-ordinator (the CTC) who had oversight of the Code Black team, there was five-day training which included individual restrictive practices and team restrictive practices.

Documentary exhibits relevant to staff training

  1. [107]
    Relevant exhibits were tendered.
  1. [108]
    PLA19 was the OHS Statewide Mandatory Work Practice Directive of August 2008. This directive stated that its purpose was to “ensure a consistent application of the Occupational Violence Risk Assessment across Queensland Health in accordance with [the] Occupational Violence Prevention and Management Implementation Standard …”
  1. [109]
    The directive acknowledged that “[w]orksite assessment and analysis of existing or potential occupational violence hazards is critical in determining appropriate actions to be taken to prevent, protect and manage occupational violence in the workplace”. It continued, “The assessment will also form the basis for information and training needs for staff”. It included as one of its key components the Occupational Violence Risk Assessment Tool (the OVRAT). It stated that an occupational violence risk assessment had to be re-assessed at least every three years or following a significant incident or change in the operational environment or activities. (My emphasis)
  1. [110]
    After prescribing the make-up of the risk-assessment team and its role, and the risk assessment process, the directive set out what was to be done with the assessment findings, which included preparing a summary report and action plan. Among other things, the report and action plan were to include “recommended controls, including occupational violence information and training plan”.
  1. [111]
    As to the implementation of control measures, the directive stated that control measures must “consider the hierarchy of controls and elements outlined in Occupational Violence Prevention and Management Implementation Standard (OHSMS 2-1#21) section 4.3 Controlling Occupational Violence Aggressive Behaviour Risks”. The directive also required a review of the implemented controls and risk assessment process on a planned basis, to ensure their effectiveness and that no new risks were introduced. Monitoring and review were to be conducted at least annually, or more frequently as determined by the level of risk identified and the effectiveness of control measures.
  1. [112]
    Exhibit PLA20 was an overview (PowerPoint) of the training provided on the first day of face-to-face “Aggressive Behaviour Management” training. The PowerPoint provided information about workplace aggression, risk management, intervention, and communication techniques. Slide 22 of the exhibit contained a depiction of a “use of force continuum”. The “use of force continuum” referred to levels of reasonable lawful intervention depending on the perception of threat and/or injury. Safety was its primary focus, followed by other means of intervention, such as communication, disengagement, medical intervention, and de-escalation. The diagram depicted “physical response” and “intervention options” at the bottom, conveying that they were the last resort. Slides 28-35 focused on communication and related to what was described as ‘verbal skills’ training.
  1. [113]
    PLA36 was the Code Black procedure document. It was titled Code Black – Personal or Facility Threat: Gold Coast University Hospital. All staff were to be inducted into the procedure and compliance with it is mandatory. Of relevance to the present case, it stated/explained –
    1. (i)
      A Code Black should be called when armed or unarmed persons threaten injury to others or themselves …;
    2. (ii)
      There are four phases of emergency response: report, respond, lockdown or evacuate, and recovery and return;
    3. (iii)
      A level 1 incident is, “A simple/localised incident that can be responded to with business-as-usual (BAU) resources and in accordance with BAU procedures” such as a request by clinical staff for a protective services officer to assist clinical staff manage patients when there is a risk of violence;
    4. (iv)
      At all times, the response to Code Black incidents, including patient- assist requests, are to be clinically led by the CTC – or in their absence, by the Senior Clinician in the area in which the threat is occurring;
    5. (v)
      Protective services officers are to provide support under the leadership and direction of the clinical lead;
    6. (vi)
      A minimum of three security officers are to respond to a Code Black (see page 12);
    7. (vii)
      Security officers responding to a Code Black should follow the directions of the clinical lead, and assist them to –
      1. Develop situational awareness;
      2. Assess what action needs to be taken to de-escalate or control the incident, ensuring the risk to the safety of all persons present is minimised;
      3. Liaise with medical and senior nursing staff in the case of incidents in Mental Health or medical wards, so that actions undertaken will be supportive of clinical treatment where appropriate;
    8. (viii)
      Security officers responding to a Code Black incident should implement agreed planned actions under the direction of the clinical lead and provide support to the clinical lead as required.
  1. [114]
    In accordance with (iii) above, the incident with M was a level 1 Code Black incident.
  1. [115]
    The protocol spelt out the roles and responsibilities of mental health ward staff in the event of a Code Black (see page 45) but there was no equivalent for staff on other wards. The document implied that, on other wards, staff were expected to isolate/contain or evacuate (ICE) (if possible) – which does not involve physical contact with the person posing the risk of aggression.

OVRATs

  1. [116]
    PLA25 was the OVRAT for the SMU dated 8 July 2012. As Mr Macdonald explained, before an OVRAT was completed for a unit, a survey was sent to the unit so that relevant data about occupational violence could be collected. In 2012, the SMU was a relatively new, post-surgical unit (it opened in late 2011) and there was not a lot of relevant data available.
  1. [117]
    The 2012 OVRAT set out several “Key Risk Areas” and prompted an identification of hazards and risks in each of those areas and a consideration of whether existing controls were adequate. In several key risk areas, the potential risk identified was verbal and physical aggression.
  1. [118]
    As to the risks in the work environment, the OVRAT stated, as a potential risk control: “new start employee induction and orientation program addresses immediate safety from occupational violence needs relevant to work area”.
  1. [119]
    Under the heading “Controlling the Risk”, the OVRAT identified a “medium” level of risk of harm due to verbal aggression because of clients with mental health conditions. It noted as the current control: “New ward. Follow good work practices”.
  1. [120]
    It identified the risk of harm by physical aggression because of clients with mental health conditions as “medium” but left blank the space for recording current controls for that risk. It suggested, as one of three possible control measures, that employees complete an “appropriate level of training in the ABM [aggressive behaviour management] program as determined by OVRAT and existent controls”.
  1. [121]
    PLA26 was an OVRAT dated 15 August 2013 – intended as an annual review of the relevant risk on the SMU. However, it was not completed because it was determined that the risk profile of the SMU did not warrant an annual review of its risk. The incomplete document was archived.
  1. [122]
    Mr Macdonald explained that the 2013 OVRAT differed from the 2012 OVRAT including because “standing risk control” was embedded into it (in the “Controlling the Risk” table), by stating, as the current control for the risk of harm due to physical and verbal aggression, “Code Black procedures and duress”. Also embedded was a requirement for “staff awareness” programs. (By “embedded”, Mr Macdonald meant pre-filled.)
  1. [123]
    PLA33 was the OVRAT for 17 October 2016. It “came about” because of “a change in the work area” – in that the dementia unit (GARU) closed and its patients were “re- distributed” including to the SMU. GARU consisted of patients with challenging behaviours.
  1. [124]
    The 2016 OVRAT stated that the SMU provided care “largely to elderly patients” and that within that patient group were “patients with cognitive impairment, acute delirium and significant functional decline”. The average age of a patient was 79, “with significant numbers of patients living with acute or chronic cognitive impairment”. It stated that the unit had had “an increased presentation of clients requiring specialling due to behavioural needs and changes in care modelling”. It added, “Staff have had limited exposure and education on such requirements, for these client profiles are not A typical (sic)” (my emphasis). “Individual patient factors occurring frequently” included “delirium, sepsis, ICU step down, Post MET call, drug toxicity and withdrawal, medically compromised MH clints requiring care”.[5]
  2. [125]
    Under cross-examination, Mr Macdonald agreed that the OVRAT was a critical document because it was the tool designed to identify the risk associated with a certain unit. It provided information about the training required for a unit. He explained that units like the emergency department or mental health units were “tier 1” areas, at which there was a higher risk of aggression. Staff in those areas were taught how to keep personally safe – but that was different to being taught how to restrain.
  1. [126]
    He clarified that an OVRAT should be undertaken, at a minimum, once every three years. He agreed that that had not occurred for the SMU. He agreed that the OVRAT was “very important”. He agreed that the 2012 OVRAT was, at best, provisional, because when it was done, the ward was new.
  1. [127]
    He agreed that by 2014, 2015 or 2016, “the situation was begging for an OVRAT … because all we’ve got on the books is a provisional one from July 2012”. It was put to Mr Macdonald that it then got “way worse” because patients were migrating from GARU to the SMU. Mr Macdonald acknowledged that those patients had challenging behaviours but said not all were transferred to hospitals and he did not know whether any ended up on the SMU because that was not something “within [his] remit”.
  1. [128]
    Mr Macdonald suggested that the information contained in the October 2016 OVRAT was likely to have been the case over the whole of the period to which it related, including March 2016.
  1. [129]
    He agreed that if, in the first three months of 2016, there were three to four patients a week coming into the SMU with behaviours, which increased the acuity of the ward (from an occupational violence point of view), then, without an increase in staff, it would be “fair to say” staff would be “stretched”.
  1. [130]
    Mr Macdonald accepted that, in March 2016, the average age of patients on the SMU was 79 years old. He agreed that there had been an “enormous increase” in the logged calls and Code Blacks over the 12 months ending in October 2016: 107 calls and 27 Code Blacks.

Security responses to calls for assistance

  1. [131]
    Mr Macdonald explained that a Code Black could be called by either someone hitting the duress button or by telephoning “222” – the “emergency call number” – and stating that there was a Code Black occurring.
  1. [132]
    The primary response to such a call would be (he said at first) “four PSOs and the clinical lead, so … the CTC … so we have clinical oversight, and that role is a nurse practitioner role … the team then split to have security doing the – the safe management of the individual , and the CTC doing the – you know, the – the clinical observations and liaising with … the clinical staff on the unit … as well” (my emphasis). A moment later in his evidence he confirmed that it was four PSOs for a “code response” – but his evidence on this point changed a little later, as will emerge below.
  1. [133]
    He said fewer than four PSOs might be sent if there was a “7777” call made. This was a call which went through to the protective services supervisor. It was the call to make if there was “a challenging individual which (sic) has not been violent, but just been disruptive, and they can then just call for a soft approach”. Initially, two PSOs would be sent. Then, upon their arrival, they would make an assessment, based on the “handover”, about whether more resources were required.
  1. [134]
    Mr Macdonald acknowledged that the number of PSOs who turned up would depend on who was available at the time. For example, there might be multiple codes going off at the same time. He acknowledged that “to some extent” nursing staff might be left “holding the baby” as they awaited the arrival of security officers. But, he continued (my emphasis), “If – if processes are followed, I would say it would be very rare that … a clinical staff member would be involved in restraining a patient”. When asked to envisage a situation in which that would occur, he referred to wandering, confused or disoriented patients who had to be guided or directed back to their rooms. I note that those examples did not involve physical restraint.
  1. [135]
    He then said a Code Black would require three security responders. Two were required for a “soft” intervention. He corrected his earlier evidence about four security responders for a Code Black and said that a Code Black response would include three security officers and the CTC.
  1. [136]
    Interestingly, on page 13 of PLA33, it stated that the number of responders available, during business hours, for a duress call was “4 x PSO Code Black response with CTC”.
  1. [137]
    Mr Macdonald explained that a “7777” call might be required for someone who was “combative to care” and that a Code Black call was like calling “000”. There would be no second guessing of a Code Black call but upon the arrival of three security officers on the ward, the situation might be “downgraded” to a security assist call. If a request for assistance (rather than a Code Black) was made, then the number of PSOs sent would depend on the information provided during the request.
  1. [138]
    He said that a decision was made at “executive level” and through discussions with the Nurses Union that nurses would not be involved in restraints and that was why three PSOs attended at a Code Black.

The training of nurses to keep themselves safe

  1. [139]
    Mr Macdonald confirmed that where a patient had to be given medication against their will, the training of nurses was limited to instructing them about liaising and engaging with protective services staff. The first consideration was the safety of staff. If a nurse was faced with an urgent situation, they were to “isolate, contain, evacuate [the ICE approach] and wait for appropriate assistance”. He said, effectively, that that ought to be the case even if a patient was causing concern, wandering into areas where other patients were, and smashing things. He said that nurses were trained to isolate, contain and evacuate; and “when communication fails, your job – you know, they are to make themselves safe”.
  1. [140]
    In response to my questioning, Mr Macdonald explained that staff who warranted additional training, because they were in tier 1 areas for violence, were further trained in keeping themselves safe. They were not trained in patient restraint. In 2016, CTCs were taught how to restrain, because they were “part of the Code Black cohort” but registered nurses, ENs, and AINs, on any medical unit, are not taught how to restrain.

Evidence of Paul McGrotty

  1. [141]
    The defendant called Paul McGrotty. He was the security co-ordinator at Robina Hospital in 2012. He gave evidence about a “flipchart” which was on almost every desk in the hospital which provided relevant details for emergencies. On that flipchart, at the third dot point on a page headed “Personal Facility Threats”, it was stated –

Attract attention if possible. Another member to call Security Services on 7777 for support or call the hospital internal emergency number 222 and advise “Code Black”.

  1. [142]
    He said that, in 2016, staff had access to duress buttons which, when pressed, automatically paged the security team’s “Code Black responders” and informed them of the relevant location.
  1. [143]
    He gave similar evidence to that given by Mr Macdonald about the difference between a call to 222 and a call to 7777. A 222 call was to be made in an emergency. A 7777 call was a “normal” call to the security office. If there was no-one in the security office, it “cascaded” to the supervisor’s phone first, and if that was not answered, to “the number two” security phone and so on until it was answered. He said it was common for the security team to receive 7777 calls.
  1. [144]
    He explained that a reference to “phone” as the “reporting means” in the security incident document for 12 March 2016 meant that security was contacted via 7777.
  1. [145]
    Under cross-examination, he said that 7777 was used for “mundane” matters – things that did not have to be done straightaway: 222 was used if security was required straight away.
  1. [146]
    He was asked to given examples about 7777 matters, and he said –

Opening a door, lots of staff will call security because they’re trying to give a patient some medication and they’re worried the patient will refuse to take the medication. That’s just normally the mental health wards. So, the security will be there to [indistinct] while the nursing staff give the patient medication.

  1. [147]
    He seemed to differentiate between having security present for a patient who might refuse their medication, and the Code Black situation, where a patient had refused their medication and had to be restrained so that it could be administered.
  1. [148]
    He agreed that it might sometimes be the case that two security officers respond to a call to do something mundane but might themselves call a Code Black if they realise (upon arrival) that the situation requires the restraint of a patient and, therefore, three security officers.
  1. [149]
    He was asked whether security staff were trained not to proceed with a Code Black task if only two were present – and he said “It depends on the situation … Depends if there was a life at threat. I don’t know”. If no life was threatened, it was “possible” that the two security officers would “contain” the situation by holding the patient until a third arrived. But that was up to the staff involved. He said security staff would take “clinical direction” (from clinical staff) when dealing with a patient.
  1. [150]
    He said that, in 2016, if 7777 was called, then two security guards would arrive. If 222 was called, then three or four would arrive.
  1. [151]
    For what it is worth, the plaintiff’s lanyard (from 2016) contained a plastic card headed “Emergency Colour Codes”. It showed that black was the code for personal threats or violence[6] and it contained an instruction to call 222 (the switchboard) for all emergencies, and if the switch was not available, to call 000. This was also the instruction on the front of the flip chart – that is, to call 222 in all emergencies. But the more detailed information about what to do in the case of a personal or security threat (a Code Black) in the flip chart instructed staff, in descending order, to: press the duress button; call Security Services on 7777 for support; call the internal emergency number, 222, and advise Code Black; then call police. Mr McGrotty agreed that that order did not reflect a descending order of best options. Nor, I note, was the information in the flipchart consistent with the notion that 222 was for Code Blacks and 7777 was for less urgent, matters.

Expert evidence about training of nursing staff in restraint

Dr Catherine Daniel – plaintiff’s nursing expert

  1. [152]
    Dr Daniel was asked to provide expert evidence about the sort of training nurses ought to receive in physical restraint. She provided a report dated 29 November 2021 under cover of an affidavit dated 27 January 2022. I will discuss the content of each separately, beginning with her report.
  1. [153]
    As will emerge, Dr Daniel’s primary position was that all nursing staff should be trained in the physical restraint of patients. She took this position because, in her opinion, it was not viable to direct nurses not to be involved in patient restraint – sometimes they just might have to be involved. Additionally, untrained clinical staff were not able to monitor the safety of the restraint applied by others.
  1. [154]
    In her report, Dr Daniel explained that, in all hospital and like clinical settings, physical restraint is used to manage risk; and where restraint is used, there is a risk to the person restrained and to the staff restraining them. She explained that training in restraint was often tiered to the needs of a particular clinical setting. She referred to guidelines from the Victorian Department of Health which included, as the key principle, that “the response to clinical aggression should be a dual clinical and security response that is clinically led”. She noted that the Victorian guidelines included, among their minimum practice standards, the following –

Staff expected to participate in teams responding to clinical aggression should have a clear understanding of how the team comes together and the roles and responsibilities of all team members.

  1. [155]
    She reviewed the Queensland Health document entitled, “Aggressive Behaviour Management (ABM) for Healthcare Workers” and the document entitled, “Occupational Violence Prevention Training OHSMS2-60#38”. She noted that the Queensland Health policy made it clear that staff who had not been trained in restraint practices should not perform restraint.
  1. [156]
    She stated, at page 5 of her report, that all staff should have “core skills, both theory and practical skills to participate in the physical response team.” She continued, “You can’t rely on security, there may be two codes called at the same time and it takes 5 people to hold a person, one for meds, one for team leader”.
  1. [157]
    She observed (errors as per original) that there was “no doubt the nurses should not have participated in patient restraint with a team that have not done the training, both for her safety and for patient safety. However, nurses put the patient first and won’t allow the patient to be at risk and not intervene”.
  1. [158]
    She said that although it was common for patients to be restrained for the purposes of receiving intra-muscular injections, there was no training “in either the ABM course or the restrictive practices course for nurses who work in medical wards”.
  1. [159]
    She discussed, at page 7 of her report the “accepted procedures” throughout Australia to safely manage “a Code Black”. She said –

In clinical practice, the best approach to each clinical scenario is prevention and recognising contributing factors such as delirium and dementia so that these can be minimised where possible. When staff however can’t manage a situation, security are called. Early work on these processes is covered in code grey and Code Black guidance published in 2005. This guidance notes there are 3 core principles that underpin the structure and operation of a violence management team (VMT) …

…

  1. The development and implementation of a written policy for job safety and security that is clearly communicated to all staff working with patients. Organisations should provide a clear definition of violence and aggression and clearly state policy response for workplace violence.
  2. That all members of the VMT are educated in respect to organisational policy and trained in techniques used to contain violent incidents.
  3. That the management of patient violence both in policy development and in staff training be informed by a framework that conceptualises patient violence as a clinical problem requiring a clinically driven response.
  1. [160]
    She explained that, in practice, there needed to be “a clear handover, roles allocated, safety concerns noted …”. Then a plan had to be developed including the detail of the way in which medication is to be administered and how the sharp will be removed from the area. The environment had to be “reviewed” to ensure there was nothing in it which could be thrown. Also, she said, one person “can’t” hold the two legs of another.
  1. [161]
    Dr Daniel was critical of the different approaches to security in mental health versus medical units. In her opinion, all nurses on wards with patients with dementia or delirium (in addition to nurses in high-risk environments such as emergency departments or mental health wards) should be trained to assist in an emergency team response. There were many clinical scenarios in which a patient may become agitated, such as after a stroke, or a brain injury. She referred to research which showed a significantly increased incidence of Code Black events[7] in patients over 65 with delirium and dementia.
  1. [162]
    She was asked whether nurses should be directed not to participate in restraint in the following terms, “Should Queensland Health issue a clear directive for Registered Nurses on general wards not to participate in team or individual restraint of patients if its position was that only security staff and staff in the mental health wards were to be given training in team restraint?
  1. [163]
    Her answer in full was (errors as per original) (my emphasis) –

Directing staff to not participate in restraint as they haven’t had the training would allow staff to remain safe however there will be situations where staff need to intervene, so this is not a viable option. It may not always be possible to wait for security and there are often not enough security staff to manage each situation i.e., 6 people to hold and provide medication to a person who is restrained.

Patients should be cared for by nurses who have had physical restraint training, the risk of injuries to patients is high and well known. Although the policy states that nurse should not participate in restraint if they have not had the training, when presented with a clinical scenario it is likely that they will have to assist in restraint to avoid harm to self or others … If nurses in the medical wards did not have training in restraint it is very hard to know what they are monitoring from a safety perspective, and they should be the clinical lead and advocate for patient safety.

Limiting restraint training to ED, mental health staff and security is not suitable if there are medical patients that require care.

The position that only security, ED, and mental health staff need physical restraint training does not address;

  • It takes 6-7 people to hold a person (one to give meds, one for each limb, one for the persons head)
  • Need to have gender balance, able to have females do restraint for cultural reasons
  • There may be 2 codes called at the same time
  • Evidence that emergency responses do occur on other wards (i.e. Delirium example)

One option may be to roster 6 security staff however if nurses aren’t aware of restraint principles, how are they monitoring patient safety, dignity, and aiming to reduce restrictive interventions. Also, this would mean nursing staff may authorise restraint in an emergency but not trained to participate in the team response.

  1. [164]
    Dr Daniel considered the Queensland Health Code Black procedure document. She observed that, in accordance with that document, the incident involving M was a level 1 Code Black. The response to it should have been clinically led, with protective services officers working under the direction and leadership of the clinical lead but, as Dr Daniel observed, untrained staff could not lead such a response.
  1. [165]
    In Dr Daniel’s opinion, given that M had been involved in two prior aggressive incidents, “it was known” that she might require a team response to her restraint on 12 March 2016: she was likely to resist her medication as she had done in the past. The procedure noted that the CTC was to monitor risk if de-escalation did not work but it was not clear who was leading the incident involving M on 12 March 2016.
  1. [166]
    She observed that there was no physical restraint procedure to guide those involved in the restraint. In her opinion, a physical restraint procedure should note things like the risks to the patient, the duration of the restraint, who is to authorise it, and the techniques to be used. Consideration ought to be given to the gender, privacy, and dignity of the patient. In her opinion, upon their arrival on the ward, the security officers should have identified the clinical lead. Then, there should have been a discussion about risks to the patient and to staff; what the medication that was to be given; how the situation would be approached; who would hold what; who would hold the sharp; who would lead communication; and how the restraint would be released. According to Dr Daniel, the clinical lead ought to ensure that the staff involved were trained, fit, able and comfortable participating in the restraint. She also suggested that a seated restraint might have been appropriate.
  1. [167]
    Dr Daniel was critical of the 15 August 2013 OVRAT – including because it was not completed. The document recognised that some of the risk factors for aggression were present in the patients on the ward but staff were not relevantly trained.
  1. [168]
    In her affidavit, Dr Daniel considered more specific information about the SMU at Robina, based on the OVRAT of 17 October 2016. She observed that it was common to find high numbers of elderly people in medical wards to have cognitive impairment as the OVRAT revealed.
  1. [169]
    She stated that the need to restrain patients is a common occurrence in medical wards – and for that matter, surgical wards. She stated that any review of nursing literature from at least 2005 would have shown that it was well-recognised that nurses will be involved in restraining patients. It followed that nurses on medical wards would require training so that they know how to engage in restraint with minimal danger.
  1. [170]
    She observed that the literature made it clear that there was a danger to clinicians during restraints. In her own experience attending code greys, an aggressive/fearful patient will kick out or resist care and can hurt a clinician. Also, staff and patients might be injured due to “poorly executed and ill-defined restraining techniques”.
  1. [171]
    A typical course in restraint training would last for 4 – 8 hours and would cover the following matters at least –
    1. (i)
      The need to have a plan before a patient is approached;
    2. (ii)
      The need to ensure that everybody involved in the restraint has training;
    3. (iii)
      The importance of having one person holding each limb and, if possible, one person holding the head, as well as one person to coordinate the response;
    4. (iv)
      The need to have a careful plan as to how the patient will be released.
  1. [172]
    In Dr Daniel’s experience, the need for restraint by nurses was high and, in her opinion, the proportion of nurses trained in restraint should be high enough to mean that, when an incident arises, there is no need to rely upon untrained nurses.
  1. [173]
    At paragraph 17 of her affidavit, she offered her opinion that the way in which M was dealt with fell well short of good practice because: (a) there were not adequate people allocated to M’s restraint; (b) there was no evidence of a plan; (c) there was no coordinated release; and (d) there was no evidence that those participating in the restraint had been adequately trained.
  1. [174]
    In cross-examination, it was put to Dr Daniel that paragraph 17 of her affidavit posited “an ideal situation”: it was a “counsel of perfection”. She said it was not. It was a standard. While situations could arise suddenly, other situations would be anticipated.
  1. [175]
    In M’s case, in addition to the two security officers who attended, there needed to be a person to reassure M and another nurse; and two persons holding M’s legs – not just one. In Dr Daniel’s opinion, those persons should stand off to the side to minimise their risk of being kicked. Additionally, had the response to the episode reflected good training, the environment would have been scanned for items which may have been thrown. In re-examination, Dr Daniel emphasised the importance of a plan for release of a patient, under the guidance of the clinical lead.
  1. [176]
    Before Dr Daniel was excused, I asked her the following question and she gave the following response (my emphasis). I told counsel that they would be permitted to ask anything arising out of my question and Mr Morton for the defendant did, as below:[8]

HER HONOUR… Doctor Daniel, accepting that things happen unexpectedly … in terms of a response to an unexpected elevation in aggression in a patient who is “acting out”, for want of a better expression, until an adequate number of staff are on the ward to deal with it, what is, in your opinion, the appropriate practice in the meantime? So … if you assume there’s a patient who is posing a risk to other patients, but there’s an obvious time lag before security can get on the ward, however many security officers arrive, have you covered in your report the approach to the situation between the point at which the aggression or the violence escalates to a dangerous level and the arrival of people who can restrain?---That’s – look, that’s a really good question. I suppose the thing is we don’t see these events as unexpected. If you’ve got an elderly population that are going to have dementia or delirium or both, then we need to be prepared to anticipate and respond to that. There can be a lag time between a person, like, calling an emergency response and security attending, and obviously staff will intervene if they feel they need to while they’re waiting for security, and that can be very difficult to judge. However, this is an expected event. It’s – this is like a common occurrence in the care of elderly people so it’s not really an unexpected event.

All right. So just following on from that – not an unexpected event. Are you suggesting that security officers should be, what, only seconds away?---No, I’m not, though they should – I suppose all staff who are caring for people who are elderly should have this type of training.

Right?---I think nursing staff should have this type of training for the exact scenario that you’re talking about when, you know, two security turn up instead of three. And the other thing is nurses can’t supervise a patient being physically restrained and be aware of all the risks if they haven’t had the same training as the people actually doing the restraining. So, for example, you know, were the security guards holding the person in the safest way and that type of stuff needs to be considered. And unless the nurses who are supervising this really high-risk clinical event have got that training – and they’ve got to have the same training as security so they know what’s going on.

All right. Okay. Thank you.

Anything arising out of that?

MR MORTON:Why do you say it’s a high-risk clinical event, Dr Daniel?---Because physical restraint is high risk to the patient and to the staff who are involved.

Yeah. But you’ve got - - -?---There’s a risk of injury to staff and to patients every time that we enact a restrictive intervention such as physical restraint.

But you’ve got two big – well, I’m more interested in risk to the staff than the patient, for the moment, at least. You’ve got two big burly security officers who’ve taken hold of this patient – this petite female. I won’t call her elderly in the light of my age. But you – and she is, in fact, safely restrained to administer the injection. Now, why do you say it’s high risk for two very large males and a competent registered nurse to do what they did?--- It’s high risk because one of her feet – had she lifted one of her knees, one of her feet would have come out of the restraint and she could have kicked somebody.

Yeah?---It’s high risk because you’ve got a syringe in a situation. So you’ve got a syringe there, and you’re giving an injection into a thigh, and you’ve got one person holding the person’s feet or ankles – the lower legs, and that hold is not very secure. And if you had somebody lay on the ground now, and you tried to hold just their two feet from the bottom of the – a bed or a chair, they’d actually be able to kick out. So it is actually – we consider it quite a high-risk event, and it’s something that’s not taken lightly in hospitals. There’s approval for it. There’s documentation. There’s risk manuals or incident reports that should be completed because it is a high-risk event.

Dr Helene Metcalfe – defendant’s nursing expert

  1. [177]
    In Dr Metcalfe’s opinion, the incident involving patient M was properly categorised as a level 1 Code Black incident – that is, an incident involving an unarmed individual threatening violence to themselves or others. It warranted the involvement of protective services/security officers in M’s physical restraint for the purposes of her being sedated.
  1. [178]
    Dr Metcalfe discussed the risks inherent in physical restraint (including patient deaths) and the need to reduce its use. She discussed the risk to staff during physical restraint, observing that the majority of injuries to staff occurred during the holding part of a restraint.
  1. [179]
    She identified the OVRAT as a control measure used by the defendant to manage the risk of injury to patients and staff. She explained that it was intended to identify and manage the occupational violence risk factors in particular workplace environments.
  1. [180]
    She noted that an alert had been created for M, which identified her as at risk of aggressive behaviour. She had cognitive impairment, she was frail, she wandered, and she was a falls risk.
  1. [181]
    She noted that all Queensland Health staff were required to attend Occupational Violence Prevention Training. She set out the employer’s responsibilities regarding risk assessment, including training and instruction, at paragraph 24 of her report as follows –

Queensland Health and the Gold Coast Hospital and Health Service … as employers have a legislative obligation under the Work Health and Safety Act (2020) to minimise the risks to staff through the identification of those clinical risks, and through the design and structure of a work environment and work practices, the provision of suitable training and other forms of support. As previously identified Queensland Health provides Mandatory and Legislative Training for all staff … specific core legislative and mandatory training is applicable to all staff across the health service regardless of professional group, stream or position. Occupational Violence Prevention is mandatory for all in addition, nursing staff are required to attend specific training on manual handling and patient handling.

  1. [182]
    Dr Metcalfe discussed the resources available to manage physical restraint in a typical public hospital in 2016. She noted that, to safely manage a Code Black level 1 – a high risk restraint – it was essential that policies and procedures were in place and staff were adequately trained. The early identification and risk assessment of individuals who might require restraint was essential.
  1. [183]
    In terms of the actual restraint applied to M, Dr Metcalfe noted that the current guidelines required the restraint to be carried out using the minimum amount of force. On the assumption that M was a petite, 60-year-old, Dr Metcalfe considered her restraint by two male officers (to hold her upper body) and one nurse (to hold her lower body) to be reasonable.
  1. [184]
    Dr Metcalfe was asked whether the training provided to the plaintiff was sufficient to enable her to safely participate in a physical restraint. With respect, Dr Metcalfe did not directly answer this question. She observed that there was mandatory training. She said that nurses and midwives should “integrate a comprehensive approach to managing risk into their practice to enhance safety and quality”. She focused on the provisions of the Mental Health Act 2016 (Qld) about restraint.
  1. [185]
    She suggested (in a different context) that the plaintiff should have “ensured a risk assessment of the situation” having previously experienced a back injury; and she should have positioned herself in the safest position possible.

Dr Daniel and Dr Metcalfe – conclave report

  1. [186]
    On 7 April 2022 and 15 April 2022, Dr Daniel and Dr Metcalfe met and discussed their opinions. They produced a joint report which outlined their agreements and disagreements. That report included the following –
    1. (i)
      There is a risk of physical and psychological injury to patients and staff during patient restraint.
    2. (ii)
      Restraint training was an essential skill for a registered nurse and included training to enable them to supervise patient care during restraints.
    3. (iii)
      There was no evidence that the plaintiff had received training in physical restraint. She did not therefore have the appropriate knowledge, skills, or competence to participate in the restraint.
    4. (iv)
      Nurses who have not received training in physical restraint should not participate in physical restraint.
    5. (v)
      Nurses must have the option not to participate in patient restraint is they have not received appropriate training.
    6. (vi)
      It was appropriate for a registered nurse to hold a patient’s legs. But it was not possible for one registered nurse to hold both legs as this required the nurse to lean over the bed and push down.
    7. (vii)
      Dr Daniel and Dr Metcalfe disagreed about the number of persons necessary to execute the safe physical restraint of M. Dr Daniel considered six persons were necessary (applying a five-point restraint, with one to administer medications). Dr Metcalfe considered three sufficient: two holding the arms and one holding the legs – with a team leader or other nurse available to administer medication.
  1. [187]
    To read this report as a cohesive whole requires the reference to the registered nurse in (vi) to be read as a reference to a registered nurse appropriately trained in physical restraint.

Evidence of medical experts

Dr Labrom – plaintiff’s expert – Adult and Paediatric Spinal Surgeon

Evidence in chief of Dr Labrom

  1. [188]
    Dr Labrom’s first report is dated 27 May 2019.
  1. [189]
    It is obvious from the report’s content and emphasis that one of the things Dr Labrom was addressing was an opinion from a Dr Day that the plaintiff suffered from a “possible strain of the right sacroiliac joint region” on 12 March 2016, and that the workplace incident was not the cause of her permanent injury.
  1. [190]
    Dr Day’s opinion was not in evidence before me, but Dr Labrom’s report was only explicable by reference to it and, in that sense, the limited expression of Dr Day’s opinion in Dr Labrom’s report was relevant and admissible.
  1. [191]
    Having regard to the results of a CT scan dated 21 March 2016, which showed gas in both sacroiliac joints and bone spurring particularly on the left side, in Dr Day’s opinion the workplace incident caused the plaintiff to suffer “a soft tissue injury of the right sacroiliac joint” with evidence of pre-existing significant degenerative change. According to Dr Day, there was no scientific evidence to support a contention that a hyperextension injury to the trunk would result in permanent aggravation of previously asymptomatic degenerative change to the sacroiliac joint.
  1. [192]
    Dr Labrom reviewed the CT scan from 21 March 2016 (that is, the one considered by Dr Day). Of it he said (my emphasis) –

This demonstrates adequate fusion of the L5/S1 level and also positioning of the L4/5 disc replacement above it. The sacroiliac joints are also noted to demonstrate widespread degenerative pathology. In my opinion, this finding can often be seen with asymptomatic patients and this is well recorded in the literature. Nonetheless the findings are quite typical of derangement within the sacroiliac joints compared to most of the population.

  1. [193]
    He expressed his clinical opinion as follows (any errors are as per original; my emphasis) –

… [T]he incident … has resulted in a significant change in the trajectory of this person’s physical performance. Psychologically and socially, there has been a dramatic change ever since. I would suggest that the incident described has mechanisms of force and injury to include a claimant who was attending a female patient, violently kicking and throwing objects at her in a situation was which was somewhat unpredictable. Security personnel were in attendance.

The important background in this particular case, is that the patient had had a previously successful spinal fusion at L1/S5 with a disc replacement at L4/5 performed on the 30th July 2015.

The claimant recovered so successfully that she had returned to work on full clearance in a period of time of less than one year since the surgery.

The mechanism of injury described also includes a twisting manoeuvre and a hyperextension (back arching) movement where Ms Wilson pulled away quickly to avoid being kicked and also to avoid an object being thrown at her.

…

[Dr Labrom referred to Dr Day’s opinion, that there was no scientific evidence to support a contention that a hyperextension injury to the trunk would result in permanent aggravation of previously asymptomatic degenerative change to the sacroiliac joint and observed that the scientific literature supported that opinion. He continued.] … [I]t is also reasonable to highlight that Ms Wilson does remain somewhat different in this scientific comparison. In other words, the scientific literature in no easy way can be drawn to compare what is a patient without such fusion surgery of the lumbar spine that has been performed on Ms Wilson. In other words, the scientific literature refers to patients who had not had “hybrid” surgery, to include fusion of the L5/S1 level and disc replacement at L4/5. The mechanisms of injury to include sacroiliac joint pathology do not clearly relate to hyperextension forces only. The forces involved usually require twisting injuries as well as forward flexion moments , as referred to by Dr Day. I would suggest that Ms Wilson does describe a twisting injury and I would suggest that her hyperextension moment should be seen in the context that she has an already very stiff lumbar spine to include fusion of the L5/S1 level and a disc replacement at the L4/5 level. In other words, her biomechanics and function of the lower lumbar region remain deranged because of her previous surgery. I think it is important to take this fact into consideration when understanding that her previously asymptomatic degenerative sacroiliac joint pathology, particularly on the right side, more likely than not, could have become aggravated with the incident described at work on the 12th March 2016, in my opinion. Respectfully, I note the opinion of Dr Day and I think that his opinion remains reasonable, though the scientific comparisons might fall short in the context of a paucity of scientific data that relates to sacroiliac joint injuries in patients who have undergone such relatively new and biomechanically poorly understood procedures such as a “hybrid” procedure in the lumbar spine.

  1. [194]
    Dr Labrom noted that the diagnosis of right sacroiliac joint inflammatory and degenerate condition resulting in pain seemed non-controversial, but issues around causation were contentious.
  1. [195]
    In support of the notion that the events of 12 March 2016 were directly related to the plaintiff’s injury was the clear history provided of the plaintiff’s hyperextension of a dysfunctional and previously fused lumbar spinal segment in the context of a twisting movement. Dr Labrom understood that the plaintiff moved “rapidly and violently”. Also, CT scans confirmed degenerative and cystic changes within the sacroiliac joint to include gas formation.
  1. [196]
    Although there was a body of scientific literature to suggest that such radiological changes may appear in completely asymptomatic people, Dr Labrom observed that many in the population did not have “such erosive and degenerate changes noted in their sacroiliac joints”. In Dr Labrom’s opinion, it was more likely than not that someone with degenerative and radiologically deranged sacroiliac joints would be more pre-disposed to suffering aggravations with the force loads of the mechanism of injury described by the plaintiff.
  1. [197]
    Referring again to Dr Day’s opinion, he continued:

The factors against causation and relationship between the event 12th March 2016, and the potential for a permanent aggravation of previously asymptomatic right sacroiliac joint pathology, includes logic supplied by Dr Day. Respectfully, I think the comments are very reasonable and the scientific literature proposed is also reasonable [the literature was not before me]. However, I think the scientific literature is not directly related to Ms Wilson in the way that the literature does not solidly support or (sic) has a group of patients who have had such relatively novel procedures performed in the form of a “hybrid” procedure which includes fusion of the sacroiliac joint and L4/5 disc replacement. In such patients, it would be important to note, they are more likely than not to have continued amounts of physical and muscular deconditioning, even at 9 months after surgery. Despite Ms Wilson’s saying that her condition was “perfect”, I would accept that this is the case with reference to her complained symptoms and amounts of pain described. However it is probable that her previously asymptomatic sacroiliac joint condition may have been more predisposed to becoming permanently aggravated because of the muscular deconditioning and outcome related to her technically successful “hybrid” procedure as of the 30th July 2015.

  1. [198]
    The emphasis in Dr Laborm’s report on the plaintiff’s pre-existing, though asymptomatic, degenerative sacroiliac joint pathology is noted. So is his opinion that there would be deconditioning after that surgery and that the plaintiff was “more predisposed” to becoming permanently injured after the workplace incident because of the consequences of her hybrid surgery. However, as the defendant fairly contended, there was then some backing away from that emphasis and opinion in Dr Labrom’s later statements and in his oral testimony.
  1. [199]
    In a telephone conversation with the plaintiff’s lawyers on 29 January 2020, Dr Labrom added to his opinion inter as follows (my emphasis) –
    1. (i)
      The fairest way to assess the permanent impairment attributable to the plaintiff’s fusion of the sacroiliac joint is by refence to her gait disturbance, as contained in the report of 27 May 2019. (See below)

The sacroiliac joint technically is not part of the spinal column. It is the part of the skeleton which articulates the sacrum to the pelvis. The sacroiliac join fusion involves fusing the lowest portion of the sacrum to the pelvis. Accordingly, the injury is unlikely to fall within the arthrodesis descriptors in lumber DRE Category 3 or 4 of the AMA Guides 5th Edition.

  1. (ii)
    Even though the plaintiff’s hybrid surgery meant that her lumbar spine did not behave “normally” from a biomechanical point of view, the mechanism of injury in the workplace incident could have caused a sacroiliac joint injury to someone with a normally functioning lumbar spine.
  2. (iii)
    Had the 2016 workplace incident not occurred, it was likely that the plaintiff would have been able to continue to work as a nurse in the “coronary care unit” (which Dr Labrom considered involved “predictable” nursing) until normal retirement age – notwithstanding her 2015 surgery.
  3. (iv)
    The plaintiff made a good recovery from the 2015 surgery, but the workplace incident “tipped her over the edge” and resulted in the significant functional limitations identified in the report of 27 May 2019.
  1. [200]
    With respect to the plaintiff’s gait disturbance, Dr Labrom noted that, on his examination of the plaintiff on 22 May 2019, she had a very altered gait pattern. “She was able to demonstrate instability in single leg stance and her Trendelenburg test on the right side was positive, demonstrating gross weakness and disfunction of the right gluteal muscle”.
  1. [201]
    During another telephone conference with the plaintiff’s lawyers on 26 August 2020, Dr Labrom was asked to consider the plaintiff’s capacity to work, bearing in mind the 2015 hybrid surgery. Dr Labrom repeated his earlier opinion that the plaintiff would have been able to work until retirement age, were it not for the workplace injury. In his opinion, had the plaintiff not had the hybrid surgery in 2015, she would not have been able to continue to work. The surgery was done “perfectly”. The plaintiff recovered appropriately after a normal period of rehabilitation.
  1. [202]
    Dr Labrom’s opinion, as then expressed, was that, to some degree, the 2015 surgery offered the plaintiff a higher level of function to move away from M’s kick than she would otherwise have had. He said that someone without her pre-existing condition and without the 2015 surgery could have been in the same position as the plaintiff after the workplace incident.
  1. [203]
    In Dr Labrom’s statement of 21 September 2022, he elaborated further on the impact of the 2015 surgery on the plaintiff. He repeated his previous opinion that there was every reason to believe that, after the surgery, the plaintiff would have been able to work until retirement age, were it not for the workplace incident.
  1. [204]
    He said that the hybrid surgery was “not uncommon” and was known to have good results, referring to an article by Professor Matthew Scott-Young and others, including Dr McEntee, which he attached to his statement (see below). I noted that in his original 2019 opinion, he referred to hybrid surgery as a “relatively novel” procedure.
  1. [205]
    In Dr Labrom’s opinion, the plaintiff was a particularly good candidate for the hybrid surgery because of her age and her attitude. Her result was “sparkling”, and she was able to return to work six weeks after surgery. Other factors put her at the top of her cohort, coming out of surgery. There was no clinical reason why, post that surgery, she could not have continued to work as a nurse (bearing in mind all that that entails physically).
  1. [206]
    Dr Labrom was asked whether the 2015 surgery rendered the plaintiff vulnerable to injury. He said that was the wrong question to ask. He said (my emphasis) –

… Ms Wilson sustained injury … to her sacroiliac joint as a result of the torsional force that occurred when she twisted and hyperextended on 12 March 2016. The hybrid surgery did not play a role in the accident happening. The accident and injury could very readily occur to anyone, regardless of whether they had had surgery prior to it occurring.

To be clear, the hybrid surgery, like most surgery, could make a person more prone to certain problems. I would note, however, that in my observation the nursing population is very diverse … which makes for spines in different conditions. Following the surgery, Ms Wilson was simply travelling within that spread of different spines …

… You can argue about whether it’s an aggravation of a pre-existing condition or, on the other hand, a new injury. But it comes down to the same thing: she was asymptomatic with no likelihood of becoming symptomatic but now she has major impediments.

  1. [207]
    As to her sacroiliac joint surgery, Dr Labrom said –

The sacroiliac joints do move quite a lot normally. As a consequence of the event on 12 March 2016, Ms Wilson has had a fusion of the right sacroiliac joint. That means that the L4 to S1 levels have to do more work, as does the other sacroiliac joint. It is entirely predictable that she would have pain and restriction emanating from the bottom of the spine, given the biomechanical changes in that area. Imaging after the accident on 12 March 2016 shows that the fusion at the L5/S1 is solid and the disc replacement at L4/L5 is still in place, and I do not consider that the surgical work was disrupted in the subject event.

  1. [208]
    It is convenient to briefly discuss the article referred to by Dr Labrom, which bore the title “Concurrent Use of Lumbar Total Disc Arthroplasty and Anterior Lumbar Interbody Fusion: The Lumbar Hybrid Procedure for the Treatment of Multilevel Symptomatic Degenerative Disc Disease”. Its authors are Dr Scott-Young, Dr McEntee, Dr Schram, Dr Rathbone, Dr Hing and Dr Neilson. It was published in the journal Spine, in 2017. I note that the plaintiff’s 2015 hybrid surgery involved an anterior approach.
  1. [209]
    The context for the study was the different approaches to treatment of chronic low back pain as a consequence of degenerative disc disease (DDD). Often the disease involved multiple levels. Surgical treatment options included anterior lumbar interbody fusion (ALIF) and total disc arthroplasty (TDA). However, treating multilevel DDD by ALIF or TDA in isolation can create secondary problems, as the authors explained –

In regards to TDA, increased facet joint stress and arthrosis have been reported as well as rotational instabilities that result in coronal plain deformity. Multilevel DDD treated by ALIF can result in adjacent motion segment disease, above and below the fused level, and increased nonunion rates.

  1. [210]
    The authors explained that the rationale for hybrid surgery was that the ALIF provided stability at an unstable degenerated lumbar segment and the TDA allowed for motion preservation, which was not achievable with traditional fusion.
  1. [211]
    Overall, their study showed strong evidence of a statistically and clinically significant reduction in back and leg pain in hybrid surgery patients – with the improvements in pain sustained for eight years.
  1. [212]
    Returning to Dr Labrom’s opinions, on 1 December 2022, in conversation with the plaintiff’s lawyers, Dr Labrom was asked to comment on the opinions of Dr O'Toole and Dr Gallie (the defendant’s experts – see below) which were to the effect that, although the plaintiff suffered an injury to her sacroiliac joint on 16 March 2016 –
    1. (i)
      There was underlying degeneration in the joint already;
    2. (ii)
      The hybrid surgery would have increased the load on the sacroiliac joint; and
    3. (iii)
      In consequence, the degeneration would have become manifest in any case, so that the plaintiff was where she would have been had the workplace incident not occurred.
  1. [213]
    Dr Labrom said, in effect, that it could not be said that a person who had degenerative changes to their sacroiliac joint on radiograph would become symptomatic. It was impossible to say what symptoms would definitely manifest for a particular person. Cystic changes on radiography were not, of themselves, evidence of structural degeneration. And even if there were degeneration, that did not mean that it would manifest in symptoms or restrictions on activities. He referred to an article entitled The Prevalence of Sacroiliac Degeneration in Asymptomatic Adults and its caution –

Radiographic evidence of sacroiliac joint degeneration is highly prevalent in the asymptomatic population and is associated with age. Caution must be exercised when attributing lower back or pelvic girdle pain to sacroiliac joint degeneration seen on imaging.

  1. [214]
    In his opinion, the disc replacement part of the hybrid surgery enabled motion. It served to strengthen and protect the sacroiliac joint – not load it up.
  1. [215]
    He referred to his experience in dealing with patients “from paediatrics to geriatrics” and said, “I have not seen any evidence that operations at the L4, L5 or S1 levels overload the sacroiliac joints or exacerbate pre-existing degeneration”. He did not consider that scenario probable or even possible on his reading and experience. He referred to the study by Dr Scott-Young et al which showed good results from the hybrid surgery and noted that sacroiliac degeneration was not a contraindication for such surgery. He noted that the operation was designed to provide stability and preserve motion at the adjacent level.
  1. [216]
    He noted Dr Gallie’s observation in his report of 21 January 2019, that the plaintiff had a normal range of motion in her lower spine. Dr Labrom considered that consistent with successful hybrid surgery. He continued (my emphasis), “This motion preservation is one of the reasons why the sacroiliac joints are not significantly stressed with normal life function after such hybrid surgery. The disc replacement permits an ongoing high level of range of motion. The fusion sits low in the pelvis, making a more modest contribution to the functional change to flexion and extension of the lumbar spine”.
  1. [217]
    He considered the plaintiff’s work injury to have been significant, in that it would have involved significant forces through her sacroiliac joint. He understood her to have been bending forward, over a lowered bed, to hold a patient by the ankle. With her hip flexed, she had to pull back and take her weight with her, and then turn.
  1. [218]
    He said there was no medical or scientific reason why the plaintiff could not have worked to normal retirement age, were it not for the workplace incident.

Cross-examination of Dr Labrom

  1. [219]
    Dr Labrom confirmed in cross-examination that, in his opinion, the radiological appearance of the plaintiff’s sacroiliac joint was more advanced (in terms of degeneration) that he would have expected of someone of her age. He confirmed his view that the incident as described by the plaintiff could have produced a symptomatic sacroiliac joint.
  1. [220]
    He agreed that the workplace incident occurred in the context of a lumbar spine, post fusion surgery, and a degenerate right sacroiliac joint. He agreed that the effect of the fusion surgery on the plaintiff was to stiffen her lumbar spine to some extent.
  1. [221]
    He said it was true “in part” that the plaintiff’s condition post fusion surgery and her degenerate sacroiliac rendered her more predisposed (than her age-related peers) to “painful episodes in the right context of a force load as complex as [one including hyperextension and/or torsional forces and compressive forces]”. He understood the workplace incident as abnormal, in that nurses were not at risk of being kicked every day.
  1. [222]
    He continued, to make a point he said was “complex”. He said –

… the fact that a spinal fusion has occurred – instinctively, you’d think that’s going to change the biomechanics of someone’s spine and pelvis, and it does … but the L5-S1 level, which has been fused, remains a highly forgiving level for a spinal fusion … it’s tolerated well … it’s because the lumbosacral disc L5’S1 is so low in the pelvis … it sits very low into the pelvic brim. The L4-L5 level, sitting at the level of the pelvic brim, in this case has been replaced, and so there’s a motion segment there. And so … the spinal surgery … perhaps made the claimant even less vulnerable to a sacroiliac joint aggravation, because you’ve got motion through … the L4-L5 level, which sits at the pelvic brim …

  1. [223]
    Dr Labrom explained that he meant less vulnerable than a patient who’d had a fusion at L4-L5 or who had pre-existent degenerate change at L4-L5. Dr Labrom suggested that perhaps the plaintiff’s hybrid surgery assisted her to avoid an even greater injury.
  1. [224]
    He did not agree that the day before 12 March 2016, the plaintiff was more predisposed to permanent disability generally than her age-related peers from the workplace incident or generally. Mr Morton pointed out that his testimony on that issue differed from the statements made in his report (my emphasis) –[9]

MR MORTON:… Doctor, I thought we agreed …that this was a lady who, on the 11th of March 2016, which is the day before the incident, because of her lumbar condition and her sacroiliac joint condition, was more predisposed than her age-related peers to the permanent onset of symptoms in the sacroiliac joint from the mechanisms which were described here?---I – I think that’s reasonable, except I disagree, Mr Morton, with permanent. You’ve used the word permanent, and – and I can’t agree with that. I mean, this person may’ve had cyclical potential for discomfort in the back and/or sacroiliac joint over a lifetime, but I – I can’t agree that she’d be more likely than not compared to the normal population [to] … having a – a permanent outcome that you’ve just referred to.

But – sorry. I’m asking you about the outcome from the incident. I thought your opinion was that because of her condition, because of the incident, she’s had a permanent outcome?---Well, yes. I believe at the moment she has a permanent impairment and a permanent disability because of the outcome of the incident described 12th of March ’16, but I think your point was, before that – the day before, you referred to – was she more predisposed to having any outcome in life that would leave her with a permanent outcome as such. And I – and I – I can’t agree with that because I couldn’t foresee – understanding the incident that I do, that’s a very abnormal, very unusual outcome. I mean, there’s not many nurses that I come across that get kicked, you know, with both feet in a lady – in – lying in a bed towards the head or body. It’s an unusual outcome. So that – on a day-to-day basis, I don’t see that, and, I think - - -

No?------for that reason, the claimant wouldn’t be more predisposed to having that outcome compared to the normal population.

…

[As to the uncommonness or otherwise of patients kicking nurses, Mr Morton continued] … patients in a dementia ward or a mental health ward might; isn’t that - - -?---Well - - -

- - - fair enough? Well, that’s reasonable, but the – the – my understanding, again – this was what they termed a takedown, which is a – sounds aggressive, doesn’t it? But, I guess, these demented and delirious patients do become physically aggressive, and it – it usually is handled in a very organised and concerted way.

Well, let – let’s not get ourselves off on a tangent like that, Doctor. Let’s stick to where we are. As at the date of the incident and accepting the incident as described to you and accepting the plaintiff’s physical condition – sacroiliac joint, lumbar spine – she was more likely than her peers to – her age- related peers to get a permanent injury from this event than no? Yes. I – I can’t agree with that, and I don’t think I’ve said that in the report, Mr Morton. I don’t believe I’ve written that, and I – I believe that she has suffered that outcome, but I don’t believe that she’s more likely than her peers … to have … suffered that outcome … despite having those radiological changes and the spinal surgery.

Right. Okay. Can we come to that in a minute, then, Doctor. I just want to cover something, and then come to that. The top of page 10 of your first report, in the bottom of the first paragraph, you accept the probability that her previously asymptomatic sacroiliac joint condition may have been predisposed to becoming permanently aggravated because of the muscular deconditioning and outcome related to a technically successful hybrid procedure. You accept that, yes?---Yes, I do.

Right. So we have a lady who has two features which rendered her predisposed, more so than her peers; isn’t that right? That’s what it says, Doctor, doesn’t it?---Yes – yes, it does there. I - - -

Thank you?---I stand corrected. Yes, I did say that.

  1. [225]
    A little later under cross-examination, Dr Labrom again agreed that “two things” predisposed the plaintiff to the onset of sacroiliac joint symptomatology – the degeneration and the hybrid surgery. Those two things might act in concert, or not, depending “on events”.
  1. [226]
    He confirmed he had no reason to think that the plaintiff would not have “made it to retirement age” were it not for the workplace incident (and depending of course on what else life “threw” at her) – even though her biomechanics were altered because of her spinal surgery. He referred to her recovery from the hybrid surgery. He described her as making what was a “terrifically stressful ordeal look, “physically and socially … fairly easy”.
  1. [227]
    He agreed that, whilst there was evidence that hybrid surgery produced good results (as per the paper by Dr Scott-Young et al), there was always the risk of the future onset of symptoms because the surgery altered a patient’s biomechanics.
  1. [228]
    He was taken to his statement of 21 September 2022 and the opinion which I have extracted above. He said he regretted saying that he was asked the wrong question. He said the question should have been whether the surgery made the plaintiff less vulnerable to having a sacroiliac joint injury, despite her previously asymptomatic and radiologically detected changes to her sacroiliac joint. He repeated his opinion that if the plaintiff had not had the hybrid surgery, then she might have been worse off today. He continued –

… and then the other things there is the sacroiliac joint question that we’ve agreed upon. I think, in principle, that the changes are there radiologically, yes, more perhaps that a person of her age … [at 40- something] … but I can’t agree that this has left her with a higher risk of developing symptoms because of this particular incident. It probably has. Whether it’s a tipping point … that … has pushed her over a degenerative edge, that she’s now become symptomatic in her sacroiliac joint that was previously asymptomatic, or whether it’s a brand-new set of pathology that relates to the ligaments and the cartilage and the other factors, including the muscles around that sacroiliac joint, I think the outcomes are the same.

Dr Gallie – defendant’s doctor – Orthopaedic Surgeon

  1. [229]
    As I let the parties know during the hearing, I was not persuaded that Dr Gallie understood the way in which the plaintiff came to be injured, which impacted upon the weight I was able to place on certain aspects of his opinion.
  1. [230]
    In his report of 21 January 2019, Dr Gallie referred to the plaintiff’s long history of back problems, dating back to age 15,[10] which worsened in 2015, resulting in the surgery by Dr Cleaver in July of that year.
  1. [231]
    Dr Gallie diagnosed the plaintiff’s work-related injury as an aggravation of pre- existing degenerative change in her right sacroiliac joint.
  1. [232]
    In Dr Gallie’s opinion, the plaintiff’s incapacity due to her work injury had ceased. He continued –

It is clear that she had a long history of problems with her lumbar sacral spine. It is likely that the previous fusion surgery has led to overload at the sacroiliac joints which has subsequently been aggravated by the work injury.

  1. [233]
    Dr Gallie considered that a significant proportion of the plaintiff’s ongoing problems were the result of long-standing issues and her previous surgery. He considered it unlikely that she would have had surgery to her sacroiliac joint had she not had pre- existing issues.
  1. [234]
    In conference with the defendant’s lawyers on 22 November 2022, Dr Gallie said that the plaintiff’s 2015 hybrid surgery potentially placed an additional load on her sacroiliac joints. The combination of the degenerative sacroiliac joint and the hybrid surgery meant that the plaintiff was at risk of developing symptomatology in the coming years. The likelihood of her being free of symptoms in her lower lumbar region for the next 25 years was quite small. It was likely that symptoms would onset as she aged, which would have adversely affected her capacity to work as a nurse.

Cross-examination of Dr Gallie

  1. [235]
    Dr Gallie had not seen Dr Labrom’s reports.
  1. [236]
    He said that the primary indication for surgery on the sacroiliac joint was osteoarthritis and there was no other indication for surgery on that joint. He agreed that people could have “radiographic changes” to their sacroiliac joint without becoming symptomatic. He said – in effect – that a diagnosis of osteoarthritis would not be made on radiographic changes only.
  1. [237]
    Whilst emphasising how difficult it was to predict the future, Dr Gallie stated that it was reasonable to assume that someone with the plaintiff’s pathology would have some symptoms “at some point in time”. In his experience, there was a very high incidence of symptoms “of some sort” in the lower lumbar region of patients with chronic back pain and significant surgery. He accepted that the plaintiff had a good outcome from her hybrid surgery – although he added the caveat “in the short term”. Whilst she had “good movement” upon his examination of her, three and a half years after the surgery, that did not support the proposition that she’d had a good outcome from it. He said pain – rather than movement – was the biggest indicator of the surgery’s success. In his opinion, the plaintiff’s pain, post the incident on 12 March 2016, indicated that she had had a less than excellent outcome from her hybrid surgery. Whilst anatomically, the sacroiliac joint and the lumbar spine were at different sites on the body, the plaintiff had significant pain over her lumbar-sacral region which was “quite broad based and non-specific”. In terms of pain location, the sites were “pretty close”, and it was “extremely difficult to differentiate the source of the pain”.
  1. [238]
    He was asked about studies to support his opinion that the hybrid surgery potentially placed an additional load on the sacroiliac joint. He said he could not quote a specific paper “off the top of [his] head” but that there was extensive literature to support the view that, if you fuse or stiffen the lumbar spine, there will be an increased load on the joints above and below the fusion. He said that opinion was widely stated and accepted by the orthopaedic community. He said he used the word “potentially” in stating his opinion because every human and the way they moved was different. Also, there was a difference between load – which could not be measured – and the development of symptoms – which were difficult to diagnose specifically.
  1. [239]
    He agreed that it was “possible, theoretically” that someone who’d had a good outcome from hybrid surgery would never have osteoarthritis in their sacroiliac joint which becomes symptomatic. He agreed that one would need research “to work out whether or not people with particular features or cohorts of symptoms or clusters of symptoms [would] become symptomatic and [which] others [would not]”. He said the Mayo Clinic had done a lot of work on what they called “failed spinal syndrome” and found that more than 10 per cent of people who had had disc replacement surgery (which he said acts like a fusion but leaves a little bit more motion) had significant symptoms, often attributable to the sacroiliac joints. By “significant symptoms”, Dr Gallie meant “severe back pain” which was not necessarily attributed to the individual motion segments within the spine. The consequences were not all to the sacroiliac joint. He did not agree that the other 90 per cent of the persons the subject of the Mayo Clinic study had less than significant consequences from spinal surgery.
  1. [240]
    In response to a question from me, Dr Gallie explained that he thought it highly unlikely that the plaintiff would have developed the symptoms she developed after the work-related incident if she had no existing pathology or had not had the surgery. He said he thought the incident she described was (my emphasis) –

… a very inconsequential thing that happens to virtually every person every – in – in – in a variety of working environments, so based on that, for her to develop the symptoms that she did, there had to be significant pre-existing pathology; otherwise, we would all move suddenly and be incapacitated by pain. So her symptoms and her – the subsequent progression of her clinical course are not consistent with a de novo injury in an otherwise normal person.

  1. [241]
    In other words, in his view, the symptoms reported by the plaintiff were the result of her longstanding and pre-existing pathology.
  1. [242]
    I put to Dr Gallie the evidence at trial about the way in which the plaintiff moved away from M. He said that the hyperextension and twisting described in evidence was a commonly performed movement which, in almost all scenarios, would lead to no outcome. He considered the evidence (as described by me) to be entirely consistent with an abnormal response to a minor injury in someone with significant pre-existing pathology in their lower lumbar sacral-pelvic region.
  1. [243]
    Mr Atkinson for the plaintiff attempted to describe the evidence of the injury to make the point that it involved a “reasonably significant movement” or swift movement “lower down” involving significant forces. Dr Gallie did not agree that the plaintiff’s movement was not an everyday motion. He compared it to the moves of professional sports people. He emphasised that it was his opinion that the plaintiff’s movement was “normal and not grossly severe” and that the chance of someone without pathology in their lumbar spine, sacral and pelvic region being injured from it was “almost zero”.
  1. [244]
    Dr Gallie observed that few people had hybrid surgery at 40 – that was unusual. He said, on the assumption that the plaintiff was not injured at work, he could not predict when her underlying degeneration would have become symptomatic. In re- examination, he said she would be injured if she moved in that same way (which he conceptualised as a relatively innocuous way) in the future.
  1. [245]
    Dr Gallie gave evidence by telephone which hindered the court’s ability to communicate with him, and he with the court, about the plaintiff’s movement, because there could be no physical demonstrations of her movement, as she described it in evidence, nor could Dr Gallie demonstrate to me his understanding of the plaintiff’s movement.[11] I struggled to understand the factual foundation for his opinion and how it was that he understood the workplace event described by the plaintiff as something innocuous – the equivalent of doing the washing (as he said). Nor could I understand how something he compared to the movement of a professional sports person be considered a normal movement. In an effort to understand his evidence, the following exchange occurred:[12]

HER HONOUR:

…Doctor Gallie ... There’s one thing that I need to get clear in my mind … You have been describing the mechanism of injury the plaintiff described to you as something – as an innocuous event. Are you able to give me some examples of similarly innocuous events that involve the same sort of hyperextension and twisting. Just so I can get in my mind what the foundation is for your opinion. If you [were] in the courtroom, we might have been able to demonstrate something to you but we can’t. So what is a comparable innocuous event? --- Any event that requires someone to stand up suddenly and move and twist. We twist every day in everything we do. We stand up every day in everything we do. Doing it quickly doesn’t typically produce injury.

All right. But do we more naturally twist at waist rather than on the sacroiliac joint?--- You don’t twist the sacroiliac joint. It has very little movement.

Right. Okay. Can you give me - - -?--- So

- - - some other examples, or an example - - -? --- No, because what we’re describing is an event that happens through everyday life with every person. So it – I think the idea that she’s had some dramatic event is what is misleading everyone. She’s described standing up and twisting. We stand up and twist every day.

I think - - -?--- We can argue about how fast it happens, but - - -

All right?--- - - - that in itself does not entail an injury. That entails a normal movement pattern.

Okay. So your understanding is that there was, at the hospital, on the day, an incident that involved the plaintiff standing up and twisting?--- She had to get out of the way of kick.

Okay. All right. I’ll see if the barristers want to take that any further. Mr Atkinson, do you want to add anything to that?

MR ATKINSON:

No, your Honour.

HER HONOUR:

No. Mr Morton?

MR MORTON:

No. I’ve run out of steam, too, your Honour.

HER HONOUR:

Yes. Okay.

Doctor Gallie, that’s the end of your evidence. Thank you very much and you’re excused?--- Thank you very much.

WITNESS EXCUSED [2.17 pm]

MR ATKINSON:

Your Honour - - -

HER HONOUR:

… I’ll leave that with you, Mr Morton, you might want to take another step. But I have no idea, frankly, of what the doctor imagined the plaintiff to have experienced on that day.

MR MORTON:

No. I – look, I get that. HER HONOUR: And it’s significant.

MR MORTON:

Well, we’ll see if we can - - -

HER HONOUR:

Have a think about it.

MR MORTON:

Yeah.

HER HONOUR:

But he didn’t build – and there’s no – he didn’t build hyperextension into that movement. Maybe I just leave it at that, but you both know I didn’t find that very helpful at all. I wasn’t convinced that he was basing his opinion on the facts before me.

Dr O'Toole – defendant’s occupational and environmental medical expert

  1. [246]
    Dr O'Toole saw the plaintiff on 25 May 2020. He was asked to determine whether she had a physical condition which might adversely impact her work performance or attendance at work. He was asked for his opinion about her fitness for duty then, and into the future. I note that he too considered the mechanism of the plaintiff’s injury to be “rather innocuous”.
  1. [247]
    Dr O'Toole considered the diagnosis relevant to the workplace incident of 12 March 2016 to be the aggravation of right sacroiliac degeneration. He continued (my emphasis) –

Ms Wilson has a complicated injury. The mechanism of injury appears rather innocuous, however consistent with causing an injury to the sacroiliac joint. Considering that Ms Wilson had undergone previous TDR [total disc replacement] and ALIF [anterior lumbar interbody fusion] to the lumbar spine, it is a known consequence of this procedure for the sacroiliac joint to be affected secondary to transfer of the forces following the loss of movement in the lumbar spine that results from fusion. This results in added tension on the SI joint, and the mechanism of injury described by Ms Wilson would be sufficient to aggravate an already degenerative and stressed SI joint.

Due to the focus on the previous surgery and concern that it may have been damaged by the incident, there was an extended period of time that had elapsed prior to the diagnosis being made.

Her initial treating specialist for the work-related injury, Dr Cleaver, had determined that she was stable and stationary in his report dated 21/10/16.

She eventually underwent surgery to the right SI joint to fuse the joint. This was not successful in that though Dr McEntee has reported that the procedure itself was successful, unfortunately Ms Wilson’s pain did not resolve.

When considering all the matters at hand, Ms Wilson’s current state represents a chronic pain syndrome. Her presentation is consistent with this.

  1. [248]
    In Dr O'Toole’s opinion, the 2015 fusion surgery had no significant impact on the plaintiff’s employability before or after the incident of 12 March 2016. However, he noted the effect of TDR and ALIF on the sacroiliac joint and said it “could foreseeably lead to her becoming symptomatic later in life earlier than what would have occurred if she had not undergone the TDR and ALIF, which would shorten her career length”. In his opinion, there was a probability of the onset of symptomatology, much like that which she suffered in the event of 12 March 2016.
  1. [249]
    Because the defendant did not suggest that Ms Wilson could return to work as a nurse, or that she had meaningful residual earning capacity, I have not set out Dr O'Toole’s opinion about her occupational restrictions or potential future employment.
  1. [250]
    In conference with the defendant’s lawyers, on 28 November 2022, Dr O'Toole made the following points (my emphasis) –
    1. (i)
      It was a known consequence that the sacroiliac joints would be affected by the 2015 surgery because of the transfer of forces following the loss of movement of the lumbar spine resulting from the fusion.
    2. (ii)
      The 2015 surgery was designed to deal with a degenerating spine in the vicinity of the sacroiliac joints. The CT scan of 12 March 2016 showed degenerative change, showing cystic formation and gas production in the bilateral sacroiliac joints. He agreed with an opinion expressed by Dr Labrom that there was widespread degenerative pathology in the sacroiliac joints. While that did not mean that the plaintiff would have symptoms, her joints were degenerating and with age, degeneration was likely to progress to the point at which she would experience symptoms.
    3. (iii)
      There was a probability that, with the passage of time, working as a nurse, the plaintiff would have experienced the onset of the sacroiliac symptoms she experienced as a result of the workplace incident within the next five to 10 years (from March 2016) – especially because of her prior surgery, which would accelerate the degenerative processes of the spine.
    4. (iv)
      He regarded it as very unlikely that the plaintiff would have been able to work until she was 67.

Cross-examination of Dr O'Toole

  1. [251]
    Dr O'Toole was questioned about the proposition that if there is degeneration visible radiographically, then symptoms will emerge in the future. He said that he would produce a study to show that the emergence of symptoms in individuals depended upon their genetics; their weight and their smoking status – combined with their level of cardiovascular fitness.
  1. [252]
    He agreed that there was no direct correlation between the amount of degeneration seen on imaging and the pain an individual experiences. But, he added, in the plaintiff’s case, she had surgery for correction of a degenerative process in 2015 which indicated that her degenerative processes had already become symptomatic – and once a process became symptomatic, he would expect it to continue to be symptomatic. He clarified that he meant that once degeneration becomes symptomatic in one part of the body, it is probable that symptoms would manifest in another part of the body. He said he had a study to show that, which he undertook to produce.
  1. [253]
    As to the probability of the plaintiff’s experience of sacroiliac joint symptomatology, after her fusion surgery, Dr O'Toole said that the plaintiff’s disc replacement at L4/L5 would “fuse over time”. The fusion there and at L5/S1 would mean that the compressive forces on her spine would be transmitted down (to the next mobile joint) – because of gravity – and the next joint was the sacroiliac joint. He said he had no studies to support that contention: it was “physics”. While he had no studies “at hand” which showed that those who had spinal fusion were more likely to have problems in their sacroiliac joint, in his clinical experience, he had seen it in a “significant number of people” who had ongoing back pain, localised to the sacroiliac area, after fusion. He undertook to provide relevant articles.
  1. [254]
    He was questioned about the scientific basis for his opinion that, in five to ten years after the incident, the plaintiff symptoms would likely have onset. He said it was based on his experience. He acknowledged that it was individualised. He said he also took into account the age at which the plaintiff suffered from signs and symptoms further up her spine.

The articles produced by Dr O'Toole

  1. [255]
    Of the several articles provided by Dr O'Toole after his testimony, only two were of any relevance to the issues before me – as counsel for the defendant acknowledged – namely:
  • Yoshihara H. Sacroiliac joint pain after lumbar/lumbosacral fusion: current knowledge. Eur Spine J. 2012, 21(9): 1788 – 96.
  • Ha KY, Lee JS, Kim KW. Degeneration of sacroiliac joint after instrumented lumbar or lumbosacral fusion: a prospective cohort study over five-year follow-up. SPINE Volume 33, Number 11, pp 1192 – 1198, 2008.

Dr Yoshihara’s article

  1. [256]
    This article discussed the possibility that the source of pain in patients with failed back surgery syndrome after lumbar/lumbosacral fusion was the sacroiliac joint (“SIJ”).
  1. [257]
    The author (then based at NYU Hospital for Joint Diseases in New York) observed that there had been an increase in lumbar/lumbosacral fusion surgeries in “the past decade” – that is between 2002 and 2012. But their failure rate ranged between 5 and 30 per cent with “some” patients continuing to complain of persistent or new low back pain post-surgery. Several authors suggested that the SIJ might be the source of the persistent pain and Dr Yoshihara concluded that that possibility should be considered.
  1. [258]
    Dr Yoshihara noted that numerous clinical and experimental studies of adjacent segment disease after lumbar fusion procedures demonstrated increased mobility in the adjacent cephalad and/or caudad segments and increased stress on the facet and/or disc of adjacent mobile segments. He continued (footnotes omitted) –

In the case of lumbosacral fusion, the SIJ is the joint adjacent to the fused segment, and similar biomechanical responses could apply to the SIJ. Ha et al reported that the incidence of SIJ degeneration is higher in patients in whom fusion is down to S1 than in patients in whom fusion is down to L5.

  1. [259]
    Dr Yoshihara referred again to the work done by Ha et al in studying the relationship between fusion and SIJ degeneration after posterolateral lumbar/lumbosacral fusion, in which the authors reported as follows –

… based on results from CT scans, the incidence of SIJ degeneration in the fusion group was significantly higher than in the control group (75 vs 38.2%, respectively). Furthermore the incidence of SIJ degeneration was greater in patients in whom fusion was down to S1 than in patients in whom fusion was done to L5. Ha et al concluded that lumbar/lumbosacral fusion can be a cause of SIJ degeneration, which develops more in patients undergoing lumbosacral fusion regardless of the number of fused segments.

  1. [260]
    Ha’s study expressly did not correlate degeneration to pain (see below). However, summarising other relevant reports, Dr Yoshihara observed that the prevalence of SIJ pain among patients with low back pain after lumbar/lumbosacral fusion appeared to be between 16 and 43 per cent. Another study showed that the duration of the efficacy of SIJ blocks was shorter in patients with a history of lumbar/lumbosacral fusion.
  1. [261]
    He concluded by stating that the SIJ was a possible source of persistent pain or new pain with failed back surgery syndrome after lumbar/lumbosacral fusion and should be considered.

Study by Ha et al

  1. [262]
    The objective of this prospective cohort study was to determine the cause-effect relationship between fusion and SIJ degeneration (not pain) after instrumented posterolateral lumbar or lumbosacral fusion.
  1. [263]
    The study involved 37 patients, with a mean age of 64, who underwent instrumented posterolateral lumbar or lumbosacral fusion. They were divided into two groups – those who’d had “floating fusion” – that is, fusion to L5 (Group 1) and those who’d had “fixed fusion” – that is, fusion to S1 (Group 2).
  1. [264]
    SIJ degeneration was assessed by confirming the absence of degeneration in the SIJ by taking CT scans before surgery and after surgery.[13] The SIJ was evaluated again by taking CT scans at 1 year and 5 years after surgery.
  1. [265]
    The incidence of SIJ degeneration in the fusion group was 75 per cent – significantly higher than in the control group (38.2 per cent). This showed that instrumented lumbar/lumbosacral fusion mediated the effect on the SIJ and accelerated the degenerative changes (a normal part of the aging process). The incidence of SIJ degeneration (bilateral and unilateral) and bilateral SIJ degeneration was higher in Group 2 than in Group 1.
  1. [266]
    At the 5-year follow up, the patients in Groups 1 and 2 reported significant improvements in the measures used to evaluate their clinical outcomes (namely, the visual analogue score of pain (VAS) and the Oswestry Disability Index (ODI)). There was no significant difference in the decrease in those scores between the two groups.
  1. [267]
    The improvement in the pain scores of both groups was remarkable. For example, before surgery, Group 1’s VAS was 8.7 + 1.3. After surgery, its VAS was 3.7 + 1.2. VAS measures pain on a 0 – 10 scale.
  1. [268]
    Ha et al concluded that instrumental posterolateral lumbar/lumbosacral fusion can be a cause of SIJ degeneration. SIJ degeneration develops more often in patients undergoing lumbosacral fusion regardless of the number of fusion segments.
  1. [269]
    However, the authors noted the limitations to their study (my emphasis):

This study mainly focused on the radiologic changes in the SIJ after instrumented lumbar/lumbosacral fusion. The clinical outcome relating SIJ degeneration or SIJ pain was not assessed. On the CT scan, SIJ degeneration developed in 75% of patients who underwent instrumented lumbar/lumbosacral fusion. However, the clinical and the functional outcome were improved significantly in these patients because the SIJ pain was not assessed. It is believed that an improvement in the clinical and functional outcome resulted from the exclusion of patients who underwent revision surgery for nonunion at the fusion site and proximal segment stenosis on the CT scans during follow up. However, although the clinical outcome related to SIJ degeneration has not been addressed, it is important to clarify whether or not adjacent segmental changes in the SIJ develop after instrumental posterolateral lumbar/lumbosacral fusion …

Dr O'Toole’s interpretation of the articles

  1. [270]
    Dr O'Toole provided the articles under cover of a supplementary report dated 19 December 2022. He relied particularly upon the two quotes from Ha’s study included in Dr Yoshiara’s report to support his opinion that persons who’d had fusion surgery were more likely to have “a problem” with their SIJ. .

Dr Labrom’s comment on the articles

  1. [271]
    I permitted Dr Labrom to reply to those two articles.
  1. [272]
    In relation to Dr Yoshihara’s article, he said that it was of only minimal relevance to me because –
    1. (i)
      The plaintiff’s spinal fusion did not fail;
    2. (ii)
      The plaintiff only had fusion at one level – the disc replacement at the other level would support the body and allow segment motion freedom;
    3. (iii)
      Its authors did not point to a necessary causal link between a fusion and sacroiliac joint pain;
    4. (iv)
      Its authors noted that at least 24.5% of asymptomatic patients over 50 had an abnormal SIJ on plain radiographs;
    5. (v)
      The study generally was concerned mostly with radiography rather than pain or symptoms;
    6. (vi)
      Its authors did not conclude that fusions generally (let alone the particular hybrid procedure the plaintiff had) cause sacroiliac joint degeneration to become symptomatic.
  1. [273]
    With respect to the Ha article, Dr Labrom said that it was of limited relevance to me because –
  1. (i)
    The study examined 37 patients only;
  2. (ii)
    The mean cohort was 64 years of age;
  3. (iii)
    All patients had a posterolateral lumbar/lumbosacral fusion using an autogenous iliac bone graft;
  4. (iv)
    The bone graft harvesting, which the plaintiff did not have, was highly relevant as it was located right next to the sacroiliac joint and the harvest itself can cause additional trauma to the buttock muscles and paraspinal muscles. Its author noted that this was in agreement with other reports showing that the harvest of cancellous bone for a bone graft also introduced pelvic instability and had a negative effect on the SIJ.

Evidence of psychiatric injury

Dr Lockwood – plaintiff’s psychiatrist

  1. [274]
    After considering in detail the plaintiff’s life experiences, her achievements, the work injury and its aftermath, Dr Lockwood offered the following opinion in her report of 14 October 2019 –

In the setting of chronic plain, difficulties associated with it, significant losses and the effects on her functioning as a worker, a parent, a friend and an individual, she has developed symptoms of significant anxiety and depression following the injury, with these becoming far more prominent and troublesome following the failure for surgery to be effective, and thus causing a significant reduction of hope. Her symptoms are consistent with a diagnosis of moderate Somatic Symptom Disorder; persistent, with predominant pain, and chronic moderate to severe Adjustment Disorder with Mixed Anxiety and Depressed Mood. I consider that she is also at increased risk of developing a Major Depressive Disorder.

It is my opinion that the psychiatric disorder has arisen entirely in response to the injury and its wide-ranging effects on her life, including potentially her future. I do not consider that any other stressor contributed to the development of this disorder.

  1. [275]
    Dr Lockwood was of the opinion that the plaintiff would likely have ongoing mental health problems, or vulnerability to them, because of her workplace injury. Applying the Psychiatric Impairment Rating Scale, she first calculated the plaintiff’s whole person impairment at 17 per cent. She acknowledged an error in that calculation in her joint report (with Dr Chalk) dated 14 February 2022 and revised it to an impairment of 7 per cent.

Dr Chalk – defendant’s psychiatrist

  1. [276]
    Dr Chalk was of the opinion that the plaintiff suffered from an adjustment disorder with depressed and anxious mood, in the setting of chronic pain. He considered her condition of mild to moderate severity. Although the plaintiff had a history of difficult circumstances, she had no previous psychiatric impairment and the likelihood of her suffering psychological illness in the future was low – were it not for the workplace incident. The causative factors of her psychiatric condition were her unremitting, chronic pain; the failure of her condition to resolve; and the loss of her career and employment – all of which were a consequence of the workplace incident.
  1. [277]
    Dr Chalk’s final percentage impairment, based on his application of the Psychiatric Impairment Rating was initially 6 per cent.
  1. [278]
    Under cross-examination, Dr Chalk confirmed that the plaintiff’s psychiatric symptoms on their own would not preclude her from gainful employment; and that her psychiatric decompensation was a consequence of her workplace injury.

Dr Lockwood and Dr Chalk’s “conclave” report

  1. [279]
    In a joint report dated 14 February 2022, the psychiatrists clarified that they both essentially agreed about the diagnosis and aetiology. Dr Lockwood and Dr Chalk adjusted some of their impairment assessments – after discussion with each other.
  1. [280]
    Ultimately, they each re-assessed the plaintiff’s psychiatric impairment at 7 per cent. Neither considered that there should be any per centage deduction for pre-existing impairment. Neither thought they could comment on the benefit of further treatment, “given the flux of time”.

Other report

Ms Nancy Stephenson – Plaintiff’s Senior Occupational Therapist

  1. [281]
    Ms Stephenson concluded that the plaintiff had only very limited capacity to return to work – and the defendant did not wish to challenge that conclusion.
  1. [282]
    The parties agreed that I would receive Ms Stephenson’s report as evidence of the plaintiff’s functioning (although much of it was devoted to her care needs which are not claimed by the plaintiff). I read the report on that basis. There is no need for me to discuss it in detail in these reasons.

Factual findings about the workplace incident and the response

  1. [283]
    I find that in 2016, the patient mix on the SMU included an increasing proportion of older patients with “behaviours” as a consequence of their dementia or other cognitive vulnerabilities, which manifested in confusion, disruption, wandering, verbal abuse, physical aggression and assault.
  1. [284]
    I find that the staff on the SMU were not trained to deal with those patients, as the defendant acknowledged in the 2016 OVRAT, beyond being told to prioritise their own safety via the “ICE” approach – isolate, contain and evacuate.
  1. [285]
    I find that M was behaving in a difficult, disruptive, and dangerous way on 12 March 2016 – putting nursing staff, other patients, and herself at risk of physical injury. She was elevated; she was attempting to interfere with other patients, and she was lashing out physically.
  1. [286]
    I find that neither her “petite” size nor her age reduced the risk she posed, as the defendant’s notes of her behaviour reveal.
  1. [287]
    I find that, in the face of M’s conduct on 12 March 2016, someone on the SMU called security.
  1. [288]
    I do not find that a Code Black was called. There was no direct evidence that such a call had been made. Relevant records do not show that such a call was made. The response by security to the call made was not consistent with a Code Black response. A Code Black response to M’s conduct was not unusual. Code Black calls made previously because of M’s conduct, resulted in three, not two, security officers attending. I find it more probable that a 7777 call was made, seeking security assistance rather than a Code Black call.
  1. [289]
    I find that M did not settle upon the arrival of the two security officers on the ward. They had to drag or march her back to her room. She was not subdued by their mere presence as she demonstrated by her resistance in the face of it; her conduct whilst on the bed; and the urgency around the need to administer medication to her so that she might calm down.
  1. [290]
    I find that the incident involving M and the plaintiff occurred as the plaintiff described it because –
    1. (i)
      I found the plaintiff to be a witness of credit;
    2. (ii)
      She was not challenged about her description of the incident in any significant way by the defendant and no other witness to the incident was called;
    3. (iii)
      She described what occurred consistently during her presentation to various experts over time; and
    4. (iv)
      Her description of M’s behaviour was consistent with the way in which M’s behaviour was described in hospital records.
  1. [291]
    I find that the plaintiff’s physical reaction to M’s conduct did not involve an “innocuous” movement, similar to movements undertaken by able bodied persons every day. The plaintiff described something more swift, abrupt, and complex than simply standing up and twisting.
  1. [292]
    I find that the movement described by the plaintiff involved hyperextension and twisting, and that it exerted, as explained by Dr Labrom, a complex collection of forces upon her sacroiliac joint.
  1. [293]
    The defendant asked me to find that the plaintiff was trained “in avoidance containment and distraction, if necessary, escape, until security could arrive”. That was not quite the evidence (although the evidence was to the same effect). I find that the plaintiff was trained to put her own safety first. And that she received training to “ICE” – isolate, contain and evacuate – in the face of a threat of her safety.
  1. [294]
    I find (indeed, the parties essentially agreed) that the plaintiff did not receive training in how to (safely or at all) restrain a patient – either from the point of view of her participating in restraint or being able to evaluate whether a restraint executed by security officers (or other relevantly trained staff) was being safely executed. Nor was the plaintiff instructed not to participate in the restraint of a patient, but to leave that to security officers (other than, obviously, in circumstances in which the plaintiff was entitled to defend herself).

Liability

  1. [295]
    The defendant reminded me of the law in relation to the employer’s obligations in this context – namely the obligation to take reasonable care for the safety of its employee. An employee is not to be exposed to a foreseeable risk of injury, where that risk could be avoided by the taking of reasonable steps.
  1. [296]
    The defendant owed the plaintiff a duty to take the precautions a reasonable hospital and health service would have taken against the risk of injury to the plaintiff which was foreseeable and not insignificant.

The foreseeable risk

  1. [297]
    M was a patient with cognitive vulnerabilities and a history of aggression towards nursing staff and others. The defendant was aware that M was becoming progressively more difficult in the lead up to the incident as revealed in its notes about her. Three security officers had responded to Code Black calls relating to M’s behaviour more than once in the days before 12 March 2016.
  1. [298]
    Among other documented behaviours –
  1. (i)
    she had been aggressive towards her partner in March, including by hitting him in the head for no reason;
  2. (ii)
    she had lunged at or attempted to choke her nurse special;
  3. (iii)
    her nurse special had to push and kick her away;

she had to be restrained on her bed for medication to be administered on 12 March 2016;

and

  1. (iv)
    she could become agitated without a trigger.
  1. [299]
    While she might have had quieter days on the ward, her unpredictability added to the risk she posed.
  1. [300]
    I find that M posed a foreseeable risk of physical injury to the plaintiff generally and in the course of being restrained. Indeed, the defendant’s counsel stated, in oral submissions, that there was “obviously a risk that staff will be assaulted; that’s why you have policies and security people and things like that”. He accepted that the relevant risk which had to have been foreseen was not confined to the precise set of circumstances of this case.

A not insignificant risk

  1. [301]
    The defendant argued that the risk posed by M was insignificant. It argued that by the time the plaintiff became involved in her restraint, she – a petite woman – was on a bed with two male security officers present. In my view, that is not the correct way to deal with the matter. The presence of the two security officers was the defendant’s response to the risk posed by M.
  1. [302]
    The risk posed by M was not insignificant. She obviously had the physical capacity to lunge at or assault others and thereby cause harm – if not by the force of her impact, but by, for example, the risk of her knocking someone off balance or catching them unaware. There was an obvious risk of harm to others if she batted things away – such as cups of tea. And, were she to resist restraint, there was a risk to those restraining her given the physicality of that exercise. That risk was heightened when she had to be restrained for the purposes of receiving an injection – because a sharp was involved. As Dr Daniel said, restraining a patient for the purposes of administering an injection to them against their will is a high-risk event. It is not something to be taken lightly.
  1. [303]
    Even if I am wrong, and I ought to consider whether the risk posed by M was not insignificant while she was prone on the bed with the security officers restraining her arms, the answer remains that the risk posed by her was not insignificant. Her legs were unrestrained. She had a history of acting out physically and with an intention to harm. For example, she had put her hands around the throat of her nurse special; barged into other patients; and hit her partner in the head. While she could not use her arms whilst they were restrained, she could use her legs to kick and thrash about – posing a risk to anyone close enough.

Reasonably practicable precautions

  1. [304]
    The defendant submitted, in effect, that the likely seriousness of any risk of injury posed by M was relatively low and that accordingly, a reasonable hospital and health service would not have taken any other precautions to protect the plaintiff from it.
  1. [305]
    The defendant invited me to consider the outcome in Stokes v House With No Steps [2016] QSC 79 and submitted that, objectively, “the likely seriousness of any injury [that M might inflict] must be less than the “low” likelihood identified by Jackson J” in that case.
  1. [306]
    In Stokes, a personal carer was attacked by the person she was caring for [P]. The present defendant’s counsel said, in oral submissions, that P was “a pretty large male individual who had a habit of being touchy feely but not so much [assaultive]” until one day it happened. For what it is worth, on the day P attacked his carer, causing her serious injury, he was 25 years old, 163 centimetres in height, weighing 47 to 48 kilograms. The plaintiff carer was then 48 years old, 157 centimetres tall, weighing approximately 80 kilograms.
  1. [307]
    Jackson J found that the risk of injury to the carer was foreseeable and not insignificant. The carer contended that a reasonable employer would have employed a second carer for P, given the risk. Based on the evidence of P’s prior assaultive behaviour, and the minor injuries suffered by staff on the receiving end of it, Jackson J found that, while the probability that injury would occur if a second carer were not employed was relatively high, the likely seriousness of the injury was relatively low and therefore the cost burden of taking the precaution of employing a second carer was unreasonably high.[14]
  2. [308]
    I did not find Stokes of assistance. His Honour was concerned with relative considerations unique to that case – that is, the likely low seriousness of the foreseeable, not insignificant injury versus the cost of a full time second carer for P as a precaution against it. In the present case, there were no costs issues about the availability of three security officers to respond to M’s aggressive behaviour. According to the defendant’s own policies and procedures, and the experts, M’s conduct amounted to a level 1 Code Black incident and required (in accordance with those policies and procedures) the attendance on the SMU of at least three, if not four, security officers and a CTC or clinical lead to deal with it.
  1. [309]
    A reasonable hospital and health service would take reasonably practical (“reasonable”) precautions to minimise the risk that clinical staff were not injured by patients like M – appreciating that if such precautions were not taken, clinical staff might be injured in a not insignificant way. Precautions, in the form of relevant policies and procedures were in place. When patient restraint was required, the defendant’s procedures required a clear division between the role of security and the role of clinicians. Security personnel were to be involved in the safe management of the individual. The CTC was to make clinical observations and to liaise with clinical staff. Nurses were to reassure the patient restrained and to administer medication to them.
  1. [310]
    The evidence of the nursing experts nominated, as a reasonable precaution, the training of nurses on wards with high proportions of patients with cognitive vulnerabilities, such as the SMU, in the physical restraint of patients.
  1. [311]
    Of course, consistently with the defendant’s practice and procedures, nurses on the SMU were not trained in patient restraint – even though the number of patients on the SMU with behaviours had increased over 2016 and there had been an “enormous increase” in security/Code Black calls over the 12 months to October 2016.
  1. [312]
    The evidence of the defendant’s security officers, and the defendant’s procedures, supported, as a reasonable precaution, an explicit instruction to nurses (other than the CTC) that they were not to take part in the physical restraint of patients in any circumstances (subject of course to their entitlement to protect or defend themselves from physical harm) – leaving that task to security officers and deploying the Isolate/Contain/Evacuate approach while awaiting their attendance.[15]
  2. [313]
    I accept – indeed, no one suggested otherwise – that, at least in 2016, it was not reasonable to have security guards on the SMU/at the immediate ready to deal with the risk posed by M (or other patients with similar behaviours).
  1. [314]
    I accept that, in the face of a patient’s disruptive behaviour, it was reasonable to instruct nurses to try methods like distraction or communication first – with security officers to be called when that failed.
  1. [315]
    I find that a reasonable precaution against the foreseeable risk of injury to the plaintiff was to instruct her not to take part in the physical restraint of a patient (subject of course to her entitlement to protect or defend herself from physical harm) but instead, to leave restraint to the security officers trained in it.
  1. [316]
    I find that it was reasonable for there to be two “security” options when it came to dealing with a patient who was behaving disruptively, aggressively, or un-cooperatively (where distraction or communication was not enough) – the “soft” 7777 option and the Code Black option. Additionally, I find that it was reasonable to anticipate that a nurse (or other clinical staff member) choosing between those options might get it wrong in terms of their evaluation of the security “force” in fact required. The situation might not in fact call for a Code Black response; or the situation might in fact require more security officer “power” than first thought. A situation with any patient, including M, might escalate or de-escalate. A patient not thought to require anything more than security “presence” to settle might elevate between the time of the call and the arrival of security to the point at which the patient needed to be restrained.
  1. [317]
    I find that it was reasonable, in those circumstances, to require security officers to adjust. Indeed, in the case of an escalating patient, it was essential.
  1. [318]
    As Mr Macdonald explained, if two officers turned up because a 7777 call had been made and a “soft” response was requested, but upon their arrival it became clear that more “resources” were required, then the security officers could call for back up.
  1. [319]
    He went on to that say that, while there would be a lag between the calling of security and their arrival, if processes were followed, it would be very rare for a clinical staff member to be involved in patient restraint. The only circumstances in which he envisaged a clinical staff member being involved in patient restraint were a far cry from their involvement in restraining a resisting patient for the purposes of injecting them with medication. Rather, he referred to the rare instances of clinical staff guiding or directing confused patients back to their room. In the face of patient violence, nurses were taught to isolate, contain, and evacuate and wait for appropriate assistance – prioritising their own safety.
  1. [320]
    The effect of Mr McGrotty’s evidence was that – other than when a life was under threat – if patient restraint was required because a “Code Black task” arose, nurses were not to be involved. Two security guards would contain a patient until a third arrived.
  1. [321]
    Indeed, consistently with the defendant’s own procedures about the appropriate response to M’s behaviour – which was in fact “level 1” Code Black behaviour – the security officers who attended on the ward should not have restrained M on her bed for the purposes of administering medication until at least one other security officer was present. They should have maintained the delineation between the role of security staff and clinical staff provided for in the defendant’s own procedures.

Breach of duty & causation

  1. [322]
    At the end of the trial, the plaintiff submitted that the defendant ought to be held liable for the plaintiff’s injuries for all or any of the following reasons –
  1. (a)
    Its failure to respond appropriately to the Code Black which was called;
  1. (b)
    Its failure to respond adequately, whether a Code Black was called or not;
  1. (c)
    The failure of the security officers who attended to call for “back up”;
  1. (d)
    The way in which M was released from restraint;
  1. (e)
    The failure to adequately train the plaintiff in the physical restraint of patients – including a failure to train her that she should, wherever possible, leave restraint to security officers; or indeed, the failure to instruct nurses not to participate in the physical restraint of a patient under any circumstances.
  1. [323]
    As to (a), I found that a Code Black was not called – but there was a call made to security for assistance, prompting the appearance of two security officers on the ward.
  1. [324]
    As to (b), there was no evidence of the content of the call made to security before me, so it is impossible to say whether the response to the call was adequate or not.
  1. [325]
    As to (c) and (e), having regard to the defendant’s own procedures; and the evidence of Mr Macdonald and McGrotty; in the context of the evidence of the nurse experts, and the evidence about the training delivered to staff of the SMU, the two security officers who attended to M should have called for one or more extra security officers to assist in M’s restraint.
  1. [326]
    Once the two security officers became aware that M required restraint for the purposes of an injection of medication into her thigh, they ought to have appreciated that the situation was, or had developed into, a level 1 Code Black, which required a minimum of three responders in accordance with the defendant’s procedures (see PLA36). They ought to have called or, or arranged for someone else to call for, another security officer to undertake the restraint. Until that third officer arrived, they should have otherwise contained M, in a manner informed by their training in patient restraint.
  1. [327]
    There was no evidence of any communication between the security officers and any of the clinical staff on the SMU about M’s restraint but – somehow – they knew she had to be taken to her bed and they must have known, before the plaintiff held down M’s legs, that M had to be restrained to receive an injection into her thigh. That (once it was known to them that M required restraint for the purposes of administering medication) was the latest point at which they ought to have called for (or arranged for someone else to call for) at least one additional security officer.
  1. [328]
    I find that it is more probable than not that, had the security officers called for backup because there was a level 1 Code Black incident on the SMU, at least one other security guard would have attended.
  1. [329]
    Trained in patient restraint, for the purposes of administering necessary medication to M, the three (or four) security guards would have held M’s limbs. The plaintiff would have adopted the role she had adopted on other Code Black occasions of reassuring the patient by speaking to her – whilst at M’s head, not at her feet. With Nurse X in charge of M’s medication, the plaintiff would have assumed the role of M’s ally or support – not her “jailer” and M would probably not have been motivated to behave violently towards her.
  1. [330]
    It was reasonably practicable to explicitly train the plaintiff to leave the restraint of a patient to security officers (it goes almost without saying, other than in a serious emergency when she had to act quickly to protect herself or others from physical harm). Such an instruction was consistent with the defendant’s relevant procedures. A reasonable employer in the defendant’s position would have taken such a precaution. The training the plaintiff received – essentially to put her safety first or the ICE method – did not convey clearly, if at all, that the plaintiff ought to leave all physical restraint to security officers.
  1. [331]
    I do not find that it would have been reasonably practicable to train the plaintiff how to physically restrain M, but given the make-up of patients on the ward, she should have been trained in the proper way for others to restrain M, so as to appreciate that at least three security officers were required to restrain M in the circumstances; and (if necessary) to provide clinical oversight of the restraint by security officers.
  1. [332]
    I infer from the evidence that the plaintiff would have followed her training, and it was not submitted that she would not.
  1. [333]
    I conclude that, if the plaintiff had not been involved in the physical restraint of M – either because the security officers called for back-up, or because she was trained that M’s restraint was to be undertaken by security officers only – she probably would not have been injured by M on 12 March 2016.
  1. [334]
    As to (d), this assumes that M was appropriately involved in M’s restraint. I find that she was not. But for completeness, I find that there was inadequate planning for M’s restraint. No one took the clinical lead on it. The security officers did not assist any member of clinical staff to assess the action necessary to control the situation or to minimise the risk to the safety of others, including the plaintiff.
  1. [335]
    The defendant’s submissions do not provide an answer to the breach of duty. As I understand the defendant’s written submissions, it contended that it had done enough as a reasonable employer.
  1. [336]
    It submitted that, in accordance with its protocols, only those trained to take part in restraint would restrain a patient and two security guards were enough to protect others from the risk of injury posed by M.
  1. [337]
    It criticised the plaintiff for looking backwards from the injury and the way in which it was caused; and submitted (as of course I accept) that I am to look forward, to consider what a reasonable employer would have done. Of course, I am not to do so in the abstract. I am to consider the foreseeable risk of harm posed by M. As above, I find that – based on her past behaviour – there was a foreseeable risk that M would cause physical harm to someone in the plaintiff’s position whilst on the ward generally (and without a trigger) and when she did not wish to take her medication or was otherwise combative to care.
  1. [338]
    The defendant asserted that it assessed the risk of violence on the ward. Clearly on the evidence it did not. It did not complete OVRATs as required.
  1. [339]
    Regardless, I accept that it was reasonable to train the plaintiff that restraint was to be a last resort. But she was not trained, as she should have been, that she was not to take part in that restraint.
  1. [340]
    I do not accept the defendant’s submission that “although this was technically restraint but viewed prospectively it was not a situation where large amounts of force were to be likely involved to control the petite prone patient”. Three security officers had been required to control M on more than one previous occasion – which, as I understand the evidence, did not include restraint as invasive as one for the purposes of injecting M against her will.
  1. [341]
    The defendant submitted that there was no time to wait for a third security officer. The situation with M was “an emergency”. It submitted that it was not possible to wait for another security guard. I do not accept that submission. Having regard to the petiteness of M (a point emphasised by the defendant often) it is reasonable to infer that two trained security officers would be able to contain her physically (on her bed or otherwise) until a third arrived for the purposes of restraining her four limbs so that she could be injected with appropriate medication.

Quantum

  1. [342]
    Having found the defendant liable, I now turn to the question of quantum.
  1. [343]
    The critical issue is whether the plaintiff would have worked until retirement at 67 were it not for the workplace injury, or whether she was unlikely to have worked as nurse beyond, say, about 2026 (ten years from 2016) because of the consequences of the 2015 hybrid surgery and/or the state of her lower back/spine.
  1. [344]
    I have studied the evidence of the orthopaedic experts carefully, as set out above.
  1. [345]
    The plaintiff relied upon the evidence of Dr Labrom and asked me to prefer it to the evidence of Dr Gallie and Dr O'Toole.
  1. [346]
    The defendant submitted that Dr Labrom’s evidence had the flavour of advocacy about it – particularly in his efforts to back away from his first stated opinion that it was probable that the plaintiff’s previously asymptomatic sacroiliac joint condition may have been more predisposed to permanent aggravation because of the muscular deconditioning and outcome related to her technically successful hybrid surgery in 2015. Further, he was inconsistent about the role played by the “consequences” of the hybrid surgery in the plaintiff’s suffering a permanent injury to her sacroiliac joint in the workplace incident. And he was inconsistent in his description of the hybrid surgery (that is, it was either “relatively new and poorly understood”, or “not uncommon”).
  1. [347]
    It was not in contest that the plaintiff had widespread degenerative pathology in her sacroiliac joint. That did not mean that she inevitably would have become symptomatic (even if she had not been injured at work in March 2016), but I find that there was a degree of probability that her degeneration would progress to the point at which she was symptomatic. In so finding, I place weight on the fact that the plaintiff was relatively young for the hybrid surgery in 2015 – which meant that her degeneration became symptomatic at a relatively early age. Further, I place greater weight on Dr Labrom’s original opinion than on his later expressed opinions. His original opinion was formed in the context of his careful study of numerous reports about the plaintiff, and relevant clinical findings. It was thoughtfully expressed.
  1. [348]
    Having said that, I find – based on the plaintiff’s determination and drive and her repeated attempts to find a solution to her current pain – that the plaintiff would have done all she could to receive assertive treatment for any emerging sacroiliac joint symptoms as they emerged, and to work around them for as long as she could, so that she could remain in employment as a nurse.
  1. [349]
    But I proceed on the basis that her vulnerability to symptomatology would increase as her degeneration continued over time. And I find there was a degree of probability that the plaintiff would have reached a point in the longer term – that is, not as soon as by 2026 – where she experienced symptoms which made full time work impossible and which caused her to retire sooner than aged 67.
  1. [350]
    I make that finding on the basis that I do not consider the plaintiff’s movements on 12 March 2016 to be innocuous, or innocent – like hanging out the washing. Rather, I consider them to have involved a complex combination of forces – but not so complex as to be unlikely to occur again in her working life (either at work or not).
  1. [351]
    Having regard to the authorities referred to by the defendant, it is not incumbent upon me to predict when the plaintiff would probably suffer the onset of sacroiliac joint symptomatology sufficient to render her incapable of earning income. But it is necessary for me to factor in the chance of that occurring in assessing the plaintiff’s damages.

General damages

  1. [352]
    I accept the plaintiff’s evidence of the consequences of her injury. It is a debilitating condition which causes her significant pain. Her physical pain and disability caused and sustains her psychiatric injury. In addition to depression, she is embarrassed by her condition; fears being out in public, in case symptoms emerge; and feels that, because of it, she is a burden to others, with nothing to offer. Additionally, she has been left with nerve symptoms after the sacroiliac joint fusion surgery.
  1. [353]
    In her claim for general damages, the plaintiff relied upon Dr Labrom’s rating of 15% whole person impairment and item 126 of the ninth schedule to the Workers Compensation and Rehabilitation Regulation 2014 (Qld) (the WCRR) – moderate pelvis or hip injury (ISV range 11 – 25).
  1. [354]
    She submitted that the top of that range was insufficient to take into account her mental health issues and the sensory disturbance in her right foot (a consequence of the sacroiliac joint fusion surgery) and sought an uplift of 15%. On that basis (working on an ISV of 29)[16], which the plaintiff submitted was modest, she was entitled to general damages of at least $60,090.
  1. [355]
    The defendant submitted that only a 10% of whole person impairment was justified, having regard to Table 17-5 of AMA 5 (the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, upon which the Queensland guidelines for the evaluation of permanent impairment are based). The defendant relied upon the fact that the plaintiff did not need crutches to ambulate (other than immediately post-surgery).
  1. [356]
    The defendant acknowledged that the plaintiff has not had a good outcome from her injury. It agreed that her physical injury was best assessed under item 126 of the nineth schedule to the WCRR. It pointed me to one of the comments in that item (“An ISV at or near the bottom of the range will be appropriate if there is a DPI for the injury of 10%.”). It submitted that the starting point therefore was an ISV of 11; and that a generous markup for psychiatric impairment would be a further ISV of 4 – leading to a provisional total ISV of 15. The defendant submitted that that ISV ought to be reduced because of the risk of the onset of sacroiliac joint symptoms anyway; and contended for a reduction to an ISV of 10. Very properly, the defendant informed me that Reddock v S T & T Ltd & Anor [2022] QSC 293, a decision of Jackson J, was the only case it could find in which an ISV had been reduced to take into account contingencies.
  1. [357]
    In arriving at an appropriate ISV, I have considered the schedule 8 matters. I consider the plaintiff’s pain and suffering and loss of amenity of life to be significant. I consider that an ISV of 10 fails to adequately take into account the significant impact of the injury on the plaintiff – physically and psychiatrically.
  1. [358]
    Taking all relevant matters into account, I assess the plaintiff’s ISV at 20 – leading to general damages of $25,150.

Past economic loss

  1. [359]
    I proceed on the basis that the plaintiff enjoyed her work as a registered nurse and was well regarded in that role. I proceed on the basis that her pay levels would have increased each year, and that her capacity to work more hours would have increased as the demand on her as a parent decreased.
  1. [360]
    The plaintiff contended for an award for past economic loss of $541,197.90. That was on the basis of her increasing to full time hours from the start of the school year in 2019 and working at least one week-end shift, and one or two night shifts per week.
  1. [361]
    The defendant contended for an award of $480,000 because of the uncertainty around full time work and promotions. The defendant submitted that that amount should be further discounted by 15% for the contingency of onset of sacroiliac joint symptoms, given that it is now seven years post injury.
  1. [362]
    I proceed on the basis that while there was a risk of the plaintiff developing sacroiliac joint symptoms anyway, the development of symptoms preventing the plaintiff from working at all – rather than symptoms preventing her from working for several days here and there – was not likely to have occurred by now, particularly given the good results she achieved post hybrid surgery. However, I acknowledge a small risk of that occurring. I proceed on the basis that the plaintiff would probably have been promoted. However, there is some uncertainty around the plaintiff’s capacity to work full-time, with a child still at school. I have reduced the award contended for by the plaintiff by 12.5% per cent to account for these matters. That leads to an amount of$473,548.16.

Interest on past economic loss

  1. [363]
    On the basis of a rate of 2 per cent, for seven years: ($473,548.16 – $109,791.04 (workers compensation benefits paid)) = $50,926.

Past Superannuation Loss

  1. [364]
    The parties agreed on a 12.75 per cent superannuation rate. That rate, applied to the past economic loss = $60,377.39.

Future Economic Loss

  1. [365]
    For obvious reasons, the plaintiff urged me to accept – without reservation – the opinion of Dr Labrom. She urged me to discount the opinion of Dr Gallie because he did not understand her mechanism of injury. She observed that, broadly, Dr O'Toole supported Dr Labrom, to the extent to which he confirmed that future predictions about when a degenerating joint may become symptomatic were fraught.
  1. [366]
    The plaintiff relied upon Dr Labrom’s opinion that the plaintiff’s asymptomatic condition would not have prevented her from working until retirement age were it not for the workplace incident. She submitted that the defendant could not show “if, when or to what extent” her degeneration would have manifested, “let alone that it would have detrimentally affected her earning capacity”. She submitted that I ought to reach the same conclusion as Fryberg J in French v QBE [2011] QSC 105 at [262] –

Conventionally amounts awarded in respect of future earnings are discounted for contingencies. The same applies to amounts awarded for future loss of support. Presumably the theoretical basis for doing this is that the method of calculation assumes more favourable factors than unfavourable ones; so a discount must be applied to restore balance. There is no evidence that [X] faced any abnormal contingencies in the future. Balance will be adequately restored by discounting the future awards by 10 per cent.

  1. [367]
    French v QBE is a very different case from the present case. Mr Crouch was killed when a car or cars ran over him. He was very intoxicated at the time. His de-facto wife brought a claim on behalf of herself and his four children. It is in that context that his Honour’s discussion of the treatment of contingencies (or there being no abnormal contingencies) is to be considered. In the present case, there is evidence which I accept that the plaintiff was at some risk of developing pain in the future – including debilitating pain – because of the condition of her sacroiliac joint and the potential consequences of her 2015 hybrid surgery.
  1. [368]
    The defendant referred me to the decision of Jackson J in Peebles v Workcover Australia [2020] QSC 106, and in particular to his Honour’s consideration of the contingency of a future disabling back condition in the plaintiff in that case. His Honour said (footnotes omitted) –
  1. [131]
    However, in my view, there was also a significant prospect that had the plaintiff not suffered the particular harms at late May 2014 and December 2014, he would have suffered from a similar disabling back condition at some time after those dates. I acknowledge that Dr Licina’s opinion of a five year horizon for that to occur is necessarily an assessment of an uncertain past or future hypothetical event, and that, as Associate Professor Fearnside explained, as the future played out the event may never have happened. But as was said in the leading case of Malec v JC Hutton Pty Ltd, it is not unusual in assessing the damages to be awarded for a past hypothetical or future event, for the question of the future or hypothetical effect of an injury or degeneration not to be susceptible of scientific demonstration or proof.
  2. [132]
    The approach required by Malec is:

But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.

  1. [133]
    In my view the probability that the event of the plaintiff suffering a similar disabling back condition to the harm that he did suffer as a result of the employer’s negligence is that it is as likely as not that he would have done so over the period of the losses he has and will have suffered as a result of the employers negligence. It is a reasonable inference from Dr Licina’s evidence that the longer the period from the date of the harms in fact suffered that is considered, the greater the likelihood that a similar disabling back condition would have been suffered. However, having regard to the methodology proposed in Malec, I do not consider it is incumbent upon the court or the correct approach to attempt to formulate a date by which a similar condition would have been suffered. The correct approach is to consider the percentage prospect overall of the event which would reduce the damage suffered from the defendant’s negligence and to decrease the amount of the award of damages accordingly.
  1. [369]
    The defendant did not contend that the plaintiff had any residual earning capacity. It accepted that she might have worked for another 20 years – had the workplace incident not occurred.
  1. [370]
    Applying a discount over 20 years produced an amount of $991,041.30. The defendant invited me to discount that amount by 50 percent. It referred me to paragraphs [18] – [20] of the Court of Appeal decision in Peebles [2021] QCA 21, in which, after noting that Jackson J’s view was that there was a 50 per cent chance that such a similar condition would never have occurred, McMurdo JA said –[17]
  1. [18]
    If the judge’s discounting of future economic loss has been wholly attributable to only that contingency, the discounting would have been excessive. As the appellant submits, the application of a 50 per cent discount, for this contingency alone, would aptly represent a finding that the applicant was certain to have been fully incapacitated by halfway through the relevant period
  1. [19]
    That submission may be accepted, as far as it goes. However, for the component of future economic loss, it was appropriate to apply a discount for the other contingencies which could have affected the appellant’s income. In that respect, a discount of 10 to 15 per cent would have been appropriate. His Honour was well aware of the need for such a discount, and the rate which he applied, namely 50 per cent, was “for the contingencies including the hypothetical event that the plaintiff in any event would have suffered a similar disabling back condition”. Consequently, it can be seen that the extent of the discount, for that particular contingency, was not as high as 50 per cent, as the appellant’s argument at times seemed to suggest.
  2. [20]
    The selection of the appropriate rate of discount involved a discretionary judgment and a range of rates was open. The trial judge could have applied a lower discount rate for future economic loss, but the question is whether he was obliged to do so. No specific error of principle is identified in the appellant’s argument on this question. Instead, the argument is that the discount of future economic loss was so unreasonable that the Court should infer that an error has been made. In my conclusion that inference cannot be made, and it was open to the trial judge to impose that discount rate on future economic loss.
  1. [371]
    The defendant referred me then to Jackson’s J respectfully made statement, in Reddock v S T & T Pty Ltd & Anor [2022] QSC 293 at [190] that the Court of Appeal’s understanding of the 50 per cent discount was not correct. His Honour said –

With all respect, that is not what a discount of 50 per cent for a contingency on the possibilities that an incapacitating event will be suffered at some point in time over a relevant period represents at all. If the risk is of an event that might happen on any given day because of the forces that will or may be experienced by a physical structure is one that is more likely to happen over a longer time period of exposure to those forces having regard to the pre-existing vulnerability of the structure, and is also affected by the likelihood of increasing degeneration in the structure that may contribute to likelihood of the event, to say that there is a 50 per cent discount for the chance of the event occurring over the whole period does not say there is a 100 per cent chance of the event occurring as at the half way point of the whole time period. Nor does it imply that there is no chance of the event occurring before that day, which is another necessary assumption for the suggested arithmetical identity.

  1. [372]
    The defendant submitted, respectfully, that Jackson J “must be right” and that it would be appropriate to discount the plaintiff’s future economic loss by the same percentage (that is, 50 per cent). That resulted in an award of $495,520.65 – rounded up to $500,000. The defendant assumed net weekly earnings of $1,448.05.
  1. [373]
    The plaintiff submitted that there ought to be no discount for the possibility of her suffering a similarly disabling condition in the future. She invited me to allow for a reduction of 10 per cent for contingencies only. By her calculations, that would result in an award of $1,440,169.16 for future economic loss. The plaintiff’s calculations were based on the plaintiff working a 40-hour week, from 2019, including an 8-hour Sunday shift and a 10-hour night shift each week. Her calculation was based on net weekly earnings between $1,209.75 and $2,190.19.
  1. [374]
    I have reached an award for future economic loss by starting at the scenario proposed by the plaintiff but discounting it for contingencies including, but not only, the contingency that she might not work a 40-hour week plus Sunday and weekend shifts from 2019 until she was 67; and the contingency that she might, in the future, suffer from pain symptoms because of pre-existing degeneration and/or the consequences of her hybrid surgery her which might shorten her working life.
  1. [375]
    I consider a discount of 50 per cent to be appropriate. To further elaborate: I have based that broadly on the vicissitudes of life (other than issues arising with the plaintiff’s back/spine); the contingency that the plaintiff might not have worked full- time with penalty shifts every year of her working life from 2019 until she was 67 – either because of demands upon her as a mother (or in later years, potentially, a grandmother) or because she might chose not to work that intensely, particularly in the last ten years or so of her working life; and the contingency that she might not have been able to work at that intensity, or at all, until she was 67 because of the pre- existing state of her sacroiliac joint and/or the consequences of the hybrid surgery. Rounding, that results in an award of $800,000.

Future superannuation

  1. [376]
    The plaintiff said the parties agreed that the applicable rate for future superannuation would be 12.75 per cent – yet the defendant invited me to apply a rate of 11 per cent. I could not find a reference to an agreed rate in the “List of Issues not in Dispute” document. Therefore, I applied a rate of 11.88 per cent: $95,040.

Fox v Wood damages

  1. [377]
    The parties agreed upon $21,821 for this award, which I will allow.

Past expenses

  1. [378]
    The parties agreed on an amount of $78,556 for past expenses, which I will allow.

Future medicals

  1. [379]
    The plaintiff claimed an amount of $14,850 (allowing for a 10 per cent reduction for vicissitudes) for future psychiatric and psychological counselling. That assumed 20 sessions a year with a psychologist for 3 years plus five sessions with a psychiatrist.
  1. [380]
    She sought a global sum of $5000 to cover monthly appointments with her general practitioner for medication and the management of her symptoms.
  1. [381]
    She claimed for monthly physiotherapy sessions (discounted by 10 per cent) at $2,055.54.
  1. [382]
    She claimed for reviews every three months for two years by a pain specialist (discounted by 10 per cent).
  1. [383]
    The defendant’s position was that the plaintiff would receive no benefit from future psychiatric or psychological support. I could not find the defendant’s specific response to the monthly general practitioner claim – but I note that it conceded travel expenses associated with the plaintiff’s attendance on her general practitioner. It contended that physiotherapy had not provided the plaintiff with an appreciable benefit in the past. Nor had the plaintiff’s previous sessions with a pain specialist offered apparent benefit.
  1. [384]
    I proceed on the basis that the plaintiff’s mental vulnerabilities were a consequence of her physical condition and the key to mental relief was improvement in her physical condition – which did not appear possible. However, psychological therapy – rather than psychiatric medication and treatment – might help the plaintiff deal with her situation in the future. I accept that she will require more frequent appointments with her general practitioner than would have been the case were it not for the workplace incident. The plaintiff has obviously not achieved relief via physiotherapy or pain management, but access to relevant specialists might be required at particular times in her life, for example, when her pain is more acute, or the medication she is on fails to provide adequate relief.
  1. [385]
    I consider it appropriate to award a global sum of $15,000 to cover the plaintiff’s future medical expenses.

Future travel expenses

  1. [386]
    I award $2000 as a global sum for future travel expenses (noting that the defendant conceded a sum of $926.17).

Future pharmaceuticals

  1. [387]
    The plaintiff claims $48,000 for future medication – including on the basis that she resumes anti-depressant medication. As the defendant points out – there was no evidence about the plaintiff’s consumption of some of the medication the subject of this award.
  1. [388]
    Also, anti-depressants have not worked in the past. While the plaintiff may well try them again, I am not persuaded that she will continue to take them for the rest of her life.
  1. [389]
    Also, the amount claimed assumes that the plaintiff will pay full price for her medication for the rest of her life and that she will need all of it for the rest of her life.
  1. [390]
    The defendant asked me to factor into the calculation of this award that the plaintiff’s out of pocket for past medication was $2000 (for the seven years post incident).
  1. [391]
    I consider it appropriate to award the plaintiff $12,000 as a global sum for her future medication.

Total award

  1. [392]
    The defendant is liable for the plaintiff’s injuries and is to pay the plaintiff the sum of $1,634,418.55.

Footnotes

[1]Final, in that it was different from the position taken in the defence as it was framed prior to the first day of trial.

[2]I assume that “Pso” is an abbreviation of “protective services officer”.

[3]Transcript 1-79.

[4]The parties agreed that the records of the plaintiff’s treatment by Dr McEntee were admissible as evidence of her treatment, but not as evidence of his opinion. He was not called by the plaintiff.

[5]Mr Macdonald had in fact completed two OVRATs in 2016 – one in October 2016 and the other in December 2016. One referred to 1900 patient presentations and the other 2000. I assumed the OVRAT referring to 2000 presentations was the later document.

[6]And, for example, red was the code colour for fire; purple for a bomb et cetera.

[7]Although the research and Dr Daniel called it code grey.

[8]Transcript 1:98 – 1:99.

[9]Transcript 3-18.

[10]The notion that the plaintiff suffered back pain from aged 15 was not something referred to by every reporter. The plaintiff was 15 when she was involved in the car accident. She told Dr Lockwood that she thought she had scans of her back while she was in hospital but there was no suggestion of any ongoing back issues. There is a reference to the plaintiff having experienced lower back pain since her accident in the report of Dr Stephenson, Occupational Therapist, quoting from a Functional Capacity Evaluation report by Jillian Wallace dated 25 July 2016. It was not suggested to the plaintiff that she’d had back issues since she was 15.

[11]I note that Jackson J too referred to the Court being at a disadvantage when expert evidence is given by telephone at [67] of Peebles v Work Cover Queensland [2020] QSC 106.

[12]T4-15 – T4-17.

[13]The article explained that the SIJ may be injured during fusion surgery, which is why a CT scan was necessary before and after.

[14]This was not actually a necessary finding of his Honour’s – because the defendant could not afford a second carer anyway: see [97] and [98].

[15]Indeed, arguably, the evidence of the defendant’s security officers, and the defendant’s procedures supported, as a reasonable precaution, an explicit instruction to security officers that only security officers were to be involved in patient restraint.

[16]Rounding up, on the basis of a 15% uplift, which leads to an ISV of 28.75.

[17]With whom Fraser JA and Mullins J (as her Honour then was) agreed.

Close

Editorial Notes

  • Published Case Name:

    Trinet Ruth Wilson v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    Wilson v Gold Coast Hospital and Health Service

  • MNC:

    [2023] QSC 135

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    23 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
French v QBE Insurance (Australia) Limited [2011] QSC 105
2 citations
Jump To
Cite 1 - [2011] QSC 105
Cite 2 - [2011] QSC 105
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
1 citation
Jump To
Cite 1 - (1990) 169 CLR 638
Peebles v Work Cover Queensland [2020] QSC 106
3 citations
Jump To
Cite 1 - [2020] QSC 106
Cite 2 - [2020] QSC 106
Cite 3 - [2020] QSC 106
Peebles v WorkCover Queensland [2021] QCA 21
2 citations
Jump To
Cite 1 - [2021] QCA 21
Cite 2 - [2021] QCA 21
Reddock v ST&T Pty Ltd [2022] QSC 293
3 citations
Jump To
Cite 1 - [2022] QSC 293
Cite 2 - [2022] QSC 293
Cite 3 - [2022] QSC 293
Stokes v House With No Steps [2016] QSC 79
2 citations
Jump To
Cite 1 - [2016] QSC 79
Cite 2 - [2016] QSC 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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