DISTRICT COURT OF QUEENSLAND
CITATION:
Armstrong-Waters v State of Queensland [2020] QDC 66
PARTIES:
LANCE DOUGLAS ARMSTRONG-WATERS
(plaintiff)
v
STATE OF QUEENSLAND
(defendant)
FILE NO/S:
191 of 2015
DIVISION:
Civil
PROCEEDING:
Claim
ORIGINATING COURT:
Cairns
DELIVERED ON:
24 April 2020
DELIVERED AT:
Cairns
HEARING DATE:
25, 26 & 27 February 2019 & 29 April 2019
JUDGE:
Morzone QC DCJ
ORDER:
1. Judgment to the plaintiff against the defendant in the sum of $357,073.49 including interest.
2. The defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) on and from 13 October 2015 to be assessed on the standard basis.
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORTS – REMOTENESS AND CAUSATION – whether the defendant breached its duty of care to take precautions against a foreseeable and not insignificant risk of injury to the plaintiff – whether the relevant breach of duty was a necessary condition of the occurrence of the injury – where the absence of sufficient adequate post-incident response manifested in a more severe injury – whether it is appropriate for the scope of liability of the person in breach to extend to the injury caused – assessment of damages
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORTS – MEASURE OF DAMAGES – PERSONAL INJURIES – where incapable of returning to work in a high-risk workplace – where able to return to remunerated employment – where there is a graduated improvement in earning capacity – assessment of damages
Legislation
Civil Liability Act 2003 (Qld) s 55
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305E, 305J
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)Cases
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Blatch v Archer (1774) 98 ER 969
Coca-Cola Amatil (NSW) Pty Ltd v Pareeze [2006] NSWCA 45
Corbin v State of Queensland [2019] QSC 110
Czartyrko v Edith Cowan University (2005) 214 ALR 349
Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Morgan v Costello [2004] WASCA 260
Public Transport Corporation v Sartori [1997] 1 VR 167
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317
Vairy v Wyong Shire Council (2005) 223 CLR 422COUNSEL:
C Ryall for the plaintiff
B Charrington for the defendant
SOLICITORS:
Maurice Blackburn for the plaintiff
Mullins Lawyers for the defendant
The plaintiff sues for damages for psychiatric injuries after being assaulted by a patient in the emergency department of the Cairns Base Hospital where he was working as a registered nurse on the night of 19 January 2014.
The plaintiff was born on 21 December 1960 and was 53 at the time of the incident. He was then employed by the defendant as a registered nurse at the Cairns Hospital pursuant to a contract of service. He had a history of exposure to trauma during his working life as a Navy medic and Navy medical officer, as a paramedic in the United Kingdom and the events in the emergency department of the Cairns Hospital about which he sought systemic changes.
The defendant provided health services in the Cairns region through its agency Queensland Health. The defendant owed a duty to the plaintiff to take reasonable care to prevent a foreseeable risk of injury to the plaintiff while he was performing his work duties. The defendant had developed guidelines for post-incident management strategies, it had determined it should review incidents of aggression and defined trends and on an ongoing basis formulate reasonable preventative measures in respect of identifying risks. The guidelines provided for suitably qualified people to carry out the roles and functions of coordination of post-incident response and to conduct post-incident debriefing.
The genesis of the plaintiff’s case is the incident between him and a male patient in the fast track area in the hospital emergency department waiting room from about 8:21 pm on 19 January 2014, followed by the nature and extent of his interaction with his superiors in the aftermath.
The plaintiff contends that after he removed a blanket from a male patient, the patient stood, verbally threatened, and punched him; then the two scuffled on the floor until the plaintiff got hold of the patient, and forcibly removed him out of the emergency waiting room. When the plaintiff returned, he briefly spoke with Ms Hood (clinical nurse and team leader) and then Ms Kenneally (clinical nurse consultant) at about 8:30 pm. The following morning, he presented himself to triage and he spoke with Mr Brose (acting nurse unit manager). The plaintiff then proceeded to apply for WorkCover, with the assistance of Ms Spalding, and attended a General Practitioner, Dr Ireland, for a certificate for that application.
The plaintiff claims that the defendant breached its duty of care to protect the plaintiff against the risk of an assault by a patient in the emergency department of the hospital and the risk of psychological injury in the aftermath of an assault. He asserts that as a consequence of the assault and the later mismanagement by superiors in the aftermath, he suffered personal injuries being a psychological injury of post-traumatic stress disorder, and physical injuries to his knee, shoulder and lower back. The plaintiff claims almost $800,000 for loss and damage for those personal injuries.
There is no dispute that the defendant, as the plaintiff’s employer, owed him a non-delegable duty of care to take reasonable care to keep him safe at work and protect him from known or foreseeable risks.[1] The obligation to provide a safe system of work extends to security of the plaintiff’s personal safety[2] and in the circumstances here, the duty extends to guarding against criminal acts of third parties by controlling the employee and the system of work that is followed.[3]
[1]Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353; Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424 at 439; Hamilton v Nuroof (Western Australia) Pty Ltd (1956) 96 CLR 18 at 25; Kondis v State Transport Authority (1984) 154 CLR 672 at 680, 687-688 per Mason J.
[2]Public Transport Corporation v Sartori [1997] 1 VR 167 at 173; Karatjas v Deakin University [2012] VSCA 53 at [25]-[31].
[3]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [29], [35], [42], [108]-[109], [138]-[141].
Whilst the defendant appreciates that it owed such a duty to its employee, it maintains that it is not liable for the plaintiff’s injuries because he has failed to prove any breach of duty (as well as causation) in circumstances where an employee provokes an assault by rigorously removing a blanket from a sleeping intoxicated patient.
The defendant contends that the plaintiff has failed to prove his case because:
1. Of the absence of any evidence, expert or otherwise, that an alternative system ought to have been in place to manage the risk of assault by patients, a system which would have prevented the assault from occurring; and
2. The evidence from Ms Hood, Ms Kenneally, Mr Brose and Ms Spalding that in the period following the subject incident, the plaintiff received support via multiple inquiries or advice as to:
(a) Whether he was fit to continue working;
(b) Whether he required medical attention by triage;
(c) The seeking of medical attention by a GP; and
(d) The availability and process associated with the Employee Assistance Scheme; and
3. The defendant submits that the preponderance of evidence is that, irrespective of any reaction to the incident by any employee of the defendant, the plaintiff’s injury had been triggered by the occurrence of the incident per se.
ISSUES
The determinative issues in the proceeding are:
1. Did the defendant breach its duty of care to take precautions against a foreseeable and not insignificant risk of injury to the plaintiff?
2. If there has been any breach of duty, was the relevant breach of duty a necessary condition of the occurrence of the injury (or did it make it more severe) and is it appropriate for the scope of liability of the person in breach to extend to the injury so caused?[4]
3. If the defendant is liable, what is the assessment of damages?
[4]Workers’ Compensation and Rehabilitation Act, s 305D(1).
I have concluded that the defendant did breach its duty of care to take reasonable precautions against a foreseeable and not insignificant risk of injury to the plaintiff, and in the circumstances of this case, such breach of duty was a necessary condition of the occurrence of the plaintiff’s injury, and did cause the plaintiff to suffer more but for the breach.
Therefore, I give judgment to the plaintiff and assess damages accordingly.
FACTUAL DISPUTES
The case involved critical factual issues about the incident with the patient, the conversations shortly after the incident and the next day, and resultant injuries. I deal with these first.
What happened in the emergency department incident on 19 January 2014?
On the night of 19 January 2014 the plaintiff was at work as a registered nurse in the emergency department of the Cairns Base Hospital.
The plaintiff testified that he was doing his usual work in the fast track area, which is a subacute area of the emergency department off the waiting area. Its main duty is to quickly treat lower category patients, treating and discharging within the four hour time restraints. He described the relative patient density in the associated area, layout and seating arrangements. He had started work at 1:00 pm and was due to finish at 9:30 pm after a handover at 9:00 pm.
The plaintiff generally described the incident in his examination in chief as follows:[5]
[5]T1-29/1 – T1-30/25.
“Now, this case is – it’s admitted there was an incident between you and a patient. Can you tell us about the events leading to that incident?‑‑‑At approximately 20.15 I’d gone out of the fast-track area, through the double doors or security doors from fast-track to waiting area. I picked up a patient to bring through for treatment. On the way back I’d mentioned to two patients that they were next on the waiting list to be seen. Can they get ready, etcetera? I removed the blankets to make sure that they actually acknowledged me. They sat up. I went back into the ‑ ‑ ‑
Can I ask you just to stop there?‑‑‑Sorry.
You told the patients that they were ‑ ‑ ‑?‑‑‑Next on the line.
Yes. Do you – did you have any conversation with them?‑‑‑The conversation was, if I remember was, a Rodney Pascoe – I just said to Rodney, well, you’re next. I think he was complaining he was hungry. I just said he’d be next. He would be treated very shortly.
All right. Can you just – so you say you removed some blankets. Do you recall what position – how they were sitting or the time you came out?‑‑‑What I recall is that, they were basically laying down on a bench in opposite directions. Feet to feet basically. So ‑ ‑ ‑
Okay. If you can take it from there. So you left them?‑‑‑Yeah. What – what I did was, I removed the blankets, one from the head section, one from the feet section, because they had pulled the blanket all the way over, and then I walked back to the area. When I came back again they’d pulled the blankets back over themself again and they were actually – pulled the blankets over their heads. When I removed the blanket from them ‑ ‑ ‑
Can you just take us from there? So you’ve come back to them?‑‑‑Yeah.
Can you take it in order? What did you do when you first came back towards them?‑‑‑Right. When I came back towards them I verbally said, “Are you ready, Rodney? I’m coming to take you.”
And ‑ ‑ ‑?‑‑‑Or of that effect. I was going to take him through to the – the treatment area.
And then what was the next thing that happened?‑‑‑Well, I started to remove the blankets. As I did that I – he became agitated. He called – he basically said, “I’m going to kill you, you white cunt.” And he – he sprung up and attacked me.
In what way was he attacking you?‑‑‑He physically barrelled into me. He was swinging his fists, etcetera. I hit the ground, came down quite heavily. I quickly had to try and stop his attack. After that – sorry.
How did you – did you – what steps did you take to stop his attack?‑‑‑Basically tried to defend myself. Then why – when I went down to the ground I managed to bring his arm up around his back in a pinion position and I was able to more control his attack on me.
And was – were you or he saying anything or doing anything at that time?‑‑‑All the way throughout that he keep – kept saying that he was going to kill me. Calling me a white C and all this type of thing. And he was going to kill me and my family and everyone else.
Once you had him restrained what happened from there?‑‑‑I – once I had him restrained I tried to get him to calm down. He continued to struggle, etcetera. So I started to walk him out of the department towards where the security area is. I got to around about where the reception area is. By this time my phone – the ward phone was smashed on to the ground. My personal phone was also on the ground. Utility belt – utility holder was on the ground. I then asked reception, “Can you call security?”
Did ‑ ‑ ‑?‑‑‑And then I proceeded to come out to the right and through the main exit. As soon as I got out the main exit security had followed me out and I handed him over to security. He continued – himself and the other patient that had been laying down, continued to be aggressive and threatening to kill me as well. So ‑ ‑ ‑
What occurred after that?‑‑‑After that I – I handed them over to security. I came back through the door. …”
When later asked why he took the patient outside the emergency department while under some control, the plaintiff said:[6]
“The patient continued to be highly aggressive. He continued to make threats that he wanted to kill me. I tried to get him to calm down. He refused to. And as I exited the department, I knew that the security office was closest to the triage desk, and hopefully I would get assistance from security by then.”
[6]T1-38/41-46.
During cross examination the plaintiff maintained that he did not have complete physical control over the patient throughout the incident, saying that “… I did not have physical control over him. He continued to struggle. He continued to threaten to kill me,” and he later added “I feared for my life.”[7]
[7]T1-73/11.
The plaintiff’s evidence in chief about the incident, perhaps refreshed by the replay of the CCTV footage, was diluted from his earlier recollection, subject of cross- examination, as contained in two earlier sworn statements wherein he recalled that:
1. He shook the first patient’s foot in his attempt to wake him;
2. He then pulled the blanket back from the first patient’s face to check his breathing;
3. The first patient then woke, and sprung to a seated position, before flailing several punches at the plaintiff from his seated position;
4. The first patient then got to his feet and continued to throw punches at the plaintiff;
5. The plaintiff was then struck by one of the punches on the shoulder and knocked to the ground;
6. When on the ground, the patient continued to punch the plaintiff before jumping on top of him;
7. A wrestle then ensued, in which the plaintiff gained the upper hand and was able to restrain the patient;
8. The plaintiff had gained an arm lock on the patient and was able to raise him to a standing position and force the patient to walk through the emergency department waiting room to the front door, with the patient resisting and attempting to free himself from the restraint during this manoeuvre;
9. A security guard arrived and assisted the plaintiff in removing the patient from the hospital.
There were loud noises and voices heard by Ms Kinnane the administration officer at the nearby nurses’ station. The plaintiff had the presence of mind to ask her to call security as he passed with the patient.
The CCTV footage shows:
1. The plaintiff initially interacted with the two male indigenous patients at about 8:16 pm as they lay on the waiting room chairs under blankets;
2. The plaintiff without warning, swiftly, abruptly and forcefully removed two blankets off the sleeping patients, one from each respective patient, without any other overt interaction. The plaintiff then returned to the area from which he came;
3. The two patients seemingly heavily intoxicated returned to their slumber. They lay down and again covered themselves with their separate blankets;
4. About 4 minutes later, the plaintiff returned and again without warning, swiftly, abruptly, and forcefully removed each blanket from each patient. The first patient slowly and unsteadily sat up while the plaintiff’s back was turned removing the other man’s blanket, but when the plaintiff returned to his vicinity, the patient sprung up to his feet and appears to throw one punch toward the plaintiff;
5. The plaintiff and the patient somehow both fall to the ground. The plaintiff apparently landed on top of the patient and they wrestled on the floor as the plaintiff got hold of the patient in an arm lock from behind and raised him to a standing position.
6. The plaintiff maintained the arm lock as he escorted the smaller patient in a frogmarch fashion through the waiting room and out of the external door of the hospital, followed by a security guard.
7. The plaintiff later returned and walked through the waiting room.
The CCTV footage provided sufficient vision of the incident from different perspectives, except at the critical time when the standing punch was thrown and the wrestle on the floor, an object in the foreground obscured any vision of contact with the plaintiff, and there is no audio in the footage. With these limitations, the plaintiff submitted that the court should be cautious of such evidence which depends on the quality and clarity of the footage.[8]
[8]Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54]-[55] & [126] per Sackville AJA (McColl JA agreed).
The plaintiff submits the video footage shows the patient ‘protagonist’ getting up and throwing one or two punches and then falling to the floor with the plaintiff where the plaintiff gets the upper hand and removes the patient from the hospital.
When I compared the plaintiff’s past and present recollection with the CCTV footage, it became very clear that his accounts are seriously flawed. The plaintiff did not show any particular care by shaking the patient’s foot or pulling the blanket from the patient’s face. He accepted that his early statement, made without the benefit of the video, was wrong in this respect. The CCTV footage shows that he removed the blanket from the patient’s body in one swift, continuous and aggressive motion. The patient did not spring to a seated position or throw any punches while seated. He seemed to rouse from an intoxicated sleep in a slow and unsteady manner; first sitting then pausing briefly before standing and punching. The patient did not throw multiple punches. He is seen to throw one punch with the trajectory toward the plaintiff. However, the punch did not seem to cause the fall nor can I see any other significant punches during the wrestle on the floor. The patient did not jump on top of the plaintiff while on the floor. The plaintiff quickly and effectively gained a controlling hold of the patient’s right arm after a very brief wrestle on the floor. The patient showed no resistance as he was marched by the plaintiff through and out of the waiting room.
The defendant is critical of the plaintiff’s versions as being so detailed and too dramatically different and skewed in his favour, to represent a genuine mistake and other collateral motives. I disagree. Whilst the plaintiff’s historical recollection is demonstrably distorted, unreliable and exaggerated; I think it was honestly held and commensurate with his subjective perception of the traumatic events as it quickly unfolded, his rumination and subsequent events. He gave his evidence earnestly and consistently with his condition and he readily expressed his inability to recall various matters. Even so, the plaintiff was shown to be an unreliable historian which negatively impacts on his credibility for this critical incident and generally. Due to this assessment, I do not accept the plaintiff’s evidence about the incident except where it is consistent with the evidence drawn from the CCTV, other witnesses, and contemporaneous notes.
The patient presented warning signs of impending violence including being uncooperative when first approached, increased tension by demands of readiness and removing the blankets, perceived threatening or verbally abuse, signs of intoxication, and a history of violence.
In the face of these indicators, the plaintiff, for the second time without warning, abruptly and forcefully removed the blanket from the apparently sleepy intoxicated patient, such that the patient awoke. I do accept that the patient posed an immediate threat from the start of the removal of the blankets as the plaintiff described, although he did not suddenly spring to a seated position or throw any punches while seated. Instead, there was a time lag between the moment the plaintiff removed the patient’s blanket and the moment the plaintiff returned to that patient after removing the second man’s blanket. In that time the patient seemed to rouse from an intoxicated sleep and rise in a slow and unsteady manner from his lying slumber to a seated position, while the plaintiff’s back was turned removing the other man’s blanket apparently oblivious to his catalytic conduct.
The plaintiff was unlikely to have anticipated what was about to happen to effectively call for help or retreat and minimise the risk of putting himself in harm’s way by returning to the patient’s side.
Once the plaintiff returned to the patient’s vicinity he suddenly stood and threw a single punch at the plaintiff. This is when he became verbally threatening and simultaneously violent, which I think is consistent with the raised voices reported by Ms Kinnane and Mr Taylor.[9] Having regard to the beginning and end of the punch’s trajectory, as shown in the CCTV footage, it is likely that the patient connected with the plaintiff. The two then fell to wrestle on the floor until the patient was restrained and removed by the plaintiff. It is unclear whether the patient landed more punches before being secured in the arm lock by the plaintiff.
[9]Exhibit 1, Doc. 1, p 1.
I accept that the plaintiff did momentarily fear for his life and was forced to legitimately defend himself quickly, instinctively and effectively, apparently employing the restraint hold in accordance with his aggressive behaviour management training. Once he got the control hold of the patient’s right arm, after very a brief wrestle on the floor, the plaintiff was able to quickly march the patient out of the waiting room and put him in charge of security before returning.
What happened between the plaintiff and Ms Hood and Ms Kenneally in the immediate aftermath of the incident?
The plaintiff briefly spoke with Ms Hood and then Ms Kenneally shortly after he returned to the emergency department after having ejected the patient.
The plaintiff did not have a complete recollection of all the words spoken but particularly recalled perceiving that his superiors were hostile towards him after returning to the fast track area. He testified:[10]
[10]T1-30/25 – T1-31/30.
“What occurred after that?‑‑‑After that I – I handed them over to security. I came back through the doors. I was trying to find my phone and everything else. Security helped me basically pick up all the pieces. I went past a patient – or sorry, two visitors that actually asked me, “Am I okay?” They witnessed it. I went through the security doors back into – back into fast-track, to where the nursing station is at fast-track. Shortly after that the CNC came through. She was quite hostile.
Can you identify the CNC by name?‑‑‑Elizabeth there.
Yes?‑‑‑She came to me. She was quite hostile. She was mentioning words like “Why did you restrain that patient? You had no right to restrain him. You’re in a lot of trouble. I should call the police.”
HIS HONOUR: And you said that she was a CNC was it?‑‑‑She was a clinical nurse. Yeah. In charge of the department at that time. Well the – she was the nurse co-ordinator.
Right. So what would CNC stand for?‑‑‑Clinical Nurse ‑ ‑ ‑
Co-ordinator?‑‑‑ ‑ ‑ ‑ Co-ordinator. Yeah.
MR RYALL: The – had you spoken to anyone else?‑‑‑After the – after that I had Victoria Kenneally – she came very shortly after that. After Elizabeth left Victoria stormed in. She was even more hostile still.
And just if you can – what makes you say she was hostile? What was she doing or saying?‑‑‑Well, she was – she was basically saying that, “How dare you take a patient out of this department. You have no rights. You assaulted the patient. I’m disgusted, etcetera.”
Do you recall saying anything to her?‑‑‑I – what I recall saying to her is, “I was attacked by this patient. I was trying to defend myself. And I used the training that I’d been given to defend myself.”
Do you recall any response to your argument that you had followed training?‑‑‑Sorry?
I’m asking you, did she respond when you said you had followed training?‑‑‑She just said that, “No. You should have backed away.” And I said to her, “I couldn’t back away. I was under attack.” So – and she just didn’t want to listen to a word I said.
And how did – was there anything that brought that conversation to a close?‑‑‑She just simply said, “Make sure you fill out all your paperwork before you go. Make sure you hand over your patients to the next shift.” And then just basically stormed out. …”
The plaintiff later explained what he did to complete the paperwork:[11]
[11]T1-36/35 – T1-37/5.
If you can start from there and take us into the night from there ‑ ‑ ‑?‑‑‑All right.
‑ ‑ ‑ as to what you did. Firstly, was there anything – did you do anything at the hospital before, I presume ‑ ‑ ‑?‑‑‑Before I had to leave – finish my shift. I had to complete all the online paperwork, the critical incident forms. I had two different forms that were downloaded off the laptop – off the screen on the nursing station. I had to fill those in. I had to do a – a patient handover for fast-track and the other beds within in the fast-track area.
All right. Can I – sorry. And so those – those forms you were talking about, they’re entirely online, that – the incident report, one ‑ ‑ ‑?‑‑‑You’ve – you can print them off. I prefer to print all the forms off and then fill – hand fill them in.
After you’d completed the handover and done the forms, what – what happened from there?‑‑‑What I done after that was the forms themself. I – there’s a little box outside the nurse manager’s – emergency manager’s office which all the forms actually go into. I dropped the forms into that box, went back to the change rooms and got my stuff and went home.”
He then explained how he ruminated and had a sleepless night:[12]
“Can you tell us about what happened once you went home?‑‑‑I was very, very upset. I mean, I was basically coming down from the adrenaline after the – the incident. I was quite shaken. I hadn’t actually had anything to eat for hours before that because we were short of staff. I went home and – because I only lived – I rented a place about two blocks from the hospital. I walked home and I just went over the incident over and over and over thinking – because I’d been told that I’d done everything so wrong, I went over throughout the night and – couldn’t sleep. Just went over in my head the incident and what I’d done wrong and what – the other implications of it. I was just very, very upset.”
[12]T1-37/7 – 15.
Ms Hood was clinical nurse co-ordinator that night, so she was the team leader for the night shift. She was first alerted to a “lot of commotion and noise and stuff going on” and saw the plaintiff as he escorted the patient out the front doors from the emergency department waiting room. She recalled the exchange with the plaintiff on his return as follows:
“I see. Did you see Mr Armstrong-Waters after the security guard had left the area?‑‑‑Yes, I did. I spoke to Lance to see if he was all right to go back to work or if he needed to have a break.
And what did he say?‑‑‑That he was all right to return to work.
Okay. Was the patient gone by that stage?‑‑‑I cannot recall, sorry.
Did you tell Mr Armstrong-Waters anything about what he had to do next?‑‑‑I explained to him that he would need to complete a PRIME, which is a – like, a workplace incident form, about the event that had just happened.
And was that the only document?‑‑‑That was the only document that he needed to do, yes.
Okay. And what did he say when you told him to do that document?‑‑‑I can’t – sorry, I can’t recall.
I see. Did you have any further conversation that you can recall with him?‑‑‑Not that I can recall through the night. I would have gone back and checked up on him, but that – I cannot recall that – what the conversation was about.
Okay. And did you accuse him of anything?‑‑‑No.”
In cross-examination, Ms Hood said: “I did recall him saying that he was trying to punch – that he was punched, yes”, and that she reported the incident to Ms Kenneally. She explained that “a PRIME document was a document that is completed online with Queensland Health for any incident that happens within the workplace. It should have a specific number for each document that is filled out. It’s just something that every staff member is meant to do when they have an incident or a injury or anything at work”.[13]
[13]T2-63/7-38.
Ms Kenneally was the most senior nurse and in charge of the emergency department that night. Her responsibilities extended to the plaintiff, other employees and the patient. After being informed by Ms Hood about the incident and that the plaintiff refused to move to a quieter area to discuss issues, Ms Kenneally located the plaintiff who by then was back working in the fast track area. She recalled his demeanour and their conversation as follows:[14]
[14]T2-65/14 - T2-66/44.
“How was his appearance when you first saw him?‑‑‑He was quite physically angry. He looked upset. I asked him what happened.
I’ll take you through ‑ ‑ ‑?‑‑‑Oh, sorry.
‑ ‑ ‑ any conversation you had with him?‑‑‑Yep.
So you did have a conversation with him?‑‑‑Yes, I did.
Okay. And what did – who started that conversation? You or him?‑‑‑I started the conversation.
And how did you do that?‑‑‑I asked him what happened.
And what did he say in response to that?‑‑‑He said that he had gone out to the waiting room to get his next patient, the patient had a blanket over him, when he went to get the patient the patient swung out – tried to punch him.
Okay. What did you say in response to that? Can you recall?‑‑‑I – first of all, I – I asked him to move to a quieter area, but he was reluctant to do that. He ‑ ‑ ‑
Did he say why he was reluctant to move?‑‑‑No, he just – he didn’t engage very much with me at all with – the conversation was brief. He didn’t engage very much with me during the conversation. He didn’t really – he appeared not to want to talk to me about the matter. He was angry – from my perspective, he was angry and had said the patient tried to – tried to hit him. I asked – I had been informed that he had physically removed the patient from the department. I asked him why he hadn’t just stepped back and called out for security. This is ‑ ‑ ‑
And what did he say in response to that?‑‑‑He said he was in line with his ABM training, which is aggressive behaviour management training, and asked if I had done that training, which I hadn’t, and ‑ ‑ ‑
What did you say to him when he asked you that?‑‑‑I said I hadn’t done the training myself.
I see?‑‑‑Yeah.
And you had asked him, before that, you said, why he didn’t simply remove himself?‑‑‑Just – just remove himself, step back, call for security. That’s their – their job to de-escalate. As I said, I didn’t witness it, so it was just my opinion at the time he should have done that.
After you’d answered him that he hadn’t done the ABM training, what happened next?‑‑‑Because he said the patient had tried to hit him, I suggested he get triaged. It was pretty late in the evening and, as I said, he – he did look upset. He was visibly angry. I – it was – I’d never seen him like that, so my suggestion was he go and get triaged and get seen medically.
And what did he say to that suggestion?‑‑‑He refused.
Okay. Did he say anything to you about what he intended to do?‑‑‑He – he – he basically – as he was walking away from me he terminated – he terminated the conversation as he was walking away from me. He muttered he was going to go to WorkCover, he was tired of the abuse in the emergency department.
They were his words?‑‑‑Yeah.
I see?‑‑‑From memory.
Do you know if he completed the necessary paperwork that you asked him to complete?‑‑‑It was the shift coordinator who’d had asked him to complete the paperwork. He asked me why he had to do it, and I said this was procedure to complete an incident report, which is the detail of the – what had occurred, and also a PRIME. A PRIME is the risk assessment part ‑ ‑ ‑
I see?‑‑‑ ‑ ‑ ‑ of the paperwork. So ‑ ‑ ‑
And when he – getting back to the suggestion of triage, when he declined to go there, did you make any attempt to persuade him?‑‑‑I can’t – I can’t recall, sorry.
How was his demeanour at that time?‑‑‑As I said, he was – I just felt he was really angry and I – I felt like he was getting more angry with me trying to talk to him. Once he walked away from me and decided that conversation was over, I left – I left it at that, to be honest, and I went to check on the triage staff because we had staff that were also – needed to be supported that were at triage and had witnessed the event.”
In cross-examination, Ms Kenneally did not accept that she was hostile towards the plaintiff when she inquired about how the plaintiff had dealt with the patient. She rejected the proposition: “So when you went to see him, you started the conversation, didn’t you, by saying that – something to the effect, “How dare you take this patient out of this department. You have no right to do that”, by answering “No, I did not.” She also rejected that the plaintiff described that he was “attacked”, but she did recall that “He said a patient had swung at him and tried to punch him”. She explained that in response: “I did say to him he should have removed himself from any danger. I’d say that to anyone, step back and called out for security. The staff in triage are – they’re quite visible, they’re quite close. They definitely could make a call very, very quickly.” I accept Ms Kenneally’s recollection of her interaction with the plaintiff, including his escalating anger and agitation, that he was unusually shaking and had signs of shock, he rebuffed her suggested support and was disengaged. I also accept Ms Kenneally’s evidence, although not noted at the time, that: “I suggested he go and get triaged so he got – so he could have a medical review.” Similarly, I accept her evidence that as the plaintiff walked away from her he muttered that he was going to go to WorkCover, he was tired of abuse in the emergency department.
I prefer the evidence of Ms Hood and Ms Kenneally where it conflicts with the plaintiff’s evidence, however, I find that the manner, tone and choice of words used by Ms Kenneally were inappropriate and were likely to be perceived by the vulnerable plaintiff as a reprimand and accusatory, and were a source of overnight rumination.
What happened between the plaintiff and Mr Brose, and on the next day?
Within 15 hours of the assault the plaintiff returned to the hospital and presented himself for triage and spoke with Mr Brose in his capacity as the acting nurse unit manager.
At triage he was seen by the nurse practitioner. He described that consultation as more empathetic as follows:[15]
“And what happened during your consultation with the nurse practitioner?‑‑‑I expressed to the nurse practitioner that I was really, really upset about it. I felt disgusted, the way I’d been treated, and she was actually the only one that showed me any degree of sympathy or empathy post-event.
How did she do that?‑‑‑She actually said, you know, “Where are your injuries?” but “Do you need help? Do you need to speak to someone?” etcetera. And she said to me, “Look, you need to go and see the nurse manager if you’ve got, you know, concerns about the way you were treated and to do it officially”, basically.
And how did that consultation conclude?‑‑‑Well, after I’d been treated and everything else, I went around to the nurse manager ‑ ‑ ‑
Just – just – thank you. Just before we talk about what you did with the nurse manager, what did you tell the nurse practitioner about – you’ve told us that you were upset. Did you talk about any other things that you wished to convey to her? You said that she looked for your injuries?‑‑‑Well, she – because I had a sore shoulder, sore knee, painful back, etcetera. So I just needed to be examined for that. And yeah, I was just very, very shaken up.”
[15]T1-37/28-46.
In accordance with the triage nurse’s recommendation the plaintiff went to speak to Mr Brose who was the acting nurse manager. He shortly described that encounter as follows:[16]
“Did you find him and speak to him?‑‑‑I did find him. He was in his office. I had to wait a while in order to speak to him. Once I went into the office, I expressed – I basically outlined what had happened, the incident itself. I said to Mr Bross how really upset and disgusted I was, the way I’d actually been treated by Victoria Kenneally and Ms Hood. I said to him that, ‘Look, you know, I’d expected some degree of at least compassion from a thorough nurse, but instead I got accusations, bullied, and I found the whole incident very intimidating’.
And what – did Mr Bross say anything to you?‑‑‑He was pretty well noncommittal. He just said, ‘I recommend you take two weeks off and go and see your GP’. And as far as I understand, he asked me to fill out WorkCover forms then for the injury. So I would’ve filled those out and given him all the paperwork back, and then I went home.”
[16]T1-38/4-16.
Ms Kenneally had already informed Mr Brose of an incident that happened the previous night involving the plaintiff. He wanted to talk with the plaintiff “purely around his wellbeing and safety because that wasn’t normal” for the plaintiff.
Mr Brose gave a measured account of his interaction with the plaintiff. He seemed well disposed to the plaintiff, personally and as an employee. He described his meeting with the plaintiff on the morning after the incident as follows:[17]
[17]T3-5/1 - T3-7/42.
“When he first presented to you in your office, how did he appear to you?‑‑‑He was quite affected by the incident the previous night, and – but not just the incident. He was quite upset with his dealings with Vicki Kenneally, the clinical nurse consultant on the previous evening, and felt that he wasn’t supported.
Did he say that to you?‑‑‑Yes.
Okay. And what did he tell you about the incident itself?‑‑‑From memory – obviously, it’s a while ago. He said he had gone out to the waiting room – he was working the fast track area of the department which is a high flow area. So, obviously, the patients who need simple treatments and then can be discharged quickly. And he was working that area, went out to the road and went to find a particular patient that was waiting to be seen. Our patient didn’t respond, went out to the person he thought was the patient, had some interaction and said that the patient had jumped up and taken a swing at him.
Yes?‑‑‑And then he felt it was his duty then to – for the safety of the patients, because the waiting rooms are quite busy, obviously, was to remove that patient from that waiting room.
And did he provide you with any basis for his belief that that process was justified?‑‑‑He said that – that the patient was a violent patient – a known violent patient and that he felt it was for – duty of care for the other patients was to remove the ‑ ‑ ‑
And did he say that he was following any part of his instruction or training?‑‑‑Yeah. So Queensland Health at the time – it has changed now – we ran an ABM course which was aggressive – aggressive behaviour management, I think, was the correct acronym for it. And he – because I did ask him around the process of how he removed the patient from the waiting room because I wasn’t – I’ve done the ABM training myself, and it wasn’t to – generally it’s around de-escalation and removing yourself from a situation to ensure personal safety. It’s not to generally go in and physically restrain a patient and remove them from the waiting room, but I just ‑ ‑ ‑
Did you make that point to him?‑‑‑Yes, I did.
And what did he say in response to that?‑‑‑He disagreed with me.
I see. Now, after the discussion about the incident itself ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ did he give you any indication of what, if anything, he intended to do next in relation to his work status?‑‑‑So – yes, he did. He indicated to me that he was going to go on WorkCover. So I did point him in the right direction and give him the contacts of the names who were on our rehabilitation team who would then assist him with going on WorkCover.
And do you recall the names you gave him?‑‑‑Deb Spalding and Kim Vine were the two names.
I see?‑‑‑And, additionally, I did speak to Kim Vine also about the incident from the OH&S team just purely because she was on a project, at the time, looking at the appropriateness of the ABM and the sustainability of the ABM training as well.
I see. So he mentioned to you WorkCover?‑‑‑Yes, he did.
And Deb Spalding – Deborah Spalding was the correct person for him to go to, to activate that, was she?‑‑‑Yes.
Okay?‑‑‑In my opinion, yeah, yes, yep.
Yes. Did he say anything about his intentions with respect to any time off?‑‑‑No.
No. Okay. There was no indication from him about any intention to take time off or ‑ ‑ ‑?‑‑‑No, normally, in those circumstances, I would explore having some time off. Generally – generally, a couple of weeks off, and then we can sit down again and discuss and see whether we’re feeling any better or do we need to look at – obviously, the emergency department is a high stress area and, at times, we will maybe offer somebody to go to a different – work in a different area of the – which isn’t as fast paced and you’re not exposed to, sometimes, the indoctrination of violence which, in emergency, they do, but Lance was very definitive in that he wanted to go onto WorkCover.
I see?‑‑‑And I didn’t feel it was the right time because he was – he was – in my opinion, he was quite angry that – for me to try and explore those other options with him, at that particular moment.
I see. Now, did you discuss any options with him that were available in terms of dealing with the consequences of the incident?‑‑‑Yeah, I was concerned about Lance when he came to my office. So I also spoke to him about the employment assistance scheme, which is a Queensland Health scheme which all employees had access to which is confidential, and I wouldn’t even know if he had accessed that. Just working – access psychologists and they can support them with the psychological side of being exposed to occupational violence.
And did you raise that with him?‑‑‑Yes, I did.
Did you explain the nature of that program?‑‑‑Yes, I did.
To him?‑‑‑Mmm.
Is that program provided by Queensland Health employees at the hospital or somewhere else?‑‑‑My understanding, it’s outsourced. So it’s an independent organisation that we outsource to, just so it’s not affiliated in that – it’s not Queensland Health employees that we’re having to deal with.
And I think you said it’s confidential; is that right?‑‑‑Totally – it’s confidential. I don’t get a report of who my staff have accessed the EMS.
Did you mention those features of the program, that it was done externally and that it was confidential? Did you mention that to Mr Armstrong-Waters?‑‑‑I would have said it was confidential. I don’t recall saying it was an external ‑ ‑ ‑
Right?‑‑‑ ‑ ‑ ‑ company.
And did you have any discussion with him about how that program is conducted in terms of being in person, by email ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ or by tele – what did – what was that discussion?‑‑‑Sorry, yeah. So there are multiple options. You can do it on the phone. Particularly, the phone option is good for immediate access to the service or – generally, most people will want to do it face-to-face. My recommendation as a line manager is you do get better value out of sitting down with somebody and talking through the situation with them, but it’s up to the individual employee how they actually access those services and whether they just feel comfortable accessing it over the phone.
Yes. What was Mr Armstrong-Waters’ response to your information about the EAS, about the Employment Assistance Service; can you recall?‑‑‑I can’t recall. I’m sorry. He was – he was – it – it was difficult communicating with Lance, at the time, because he was quite angry about the previous night still. So I – I don’t know how much he actually took in of what I was saying, and that wasn’t normal behaviour for Lance, and that’s why I was concerned when I spoke to him about the EAS program.”
In cross examination Mr Brose contrasted the plaintiff’s presentation at the meeting with his normal demeanour saying: “Lance was easy to converse with. I could always make a really good conversation with – you could always have a joke with Lance. As his line manager – I’ve been his line manager for a number of years. If I needed something done, I could always go to Lance and he would never tell me no. He would – he was a – a really good employee. On the particular day, I could see he had been incredibly affected by the circumstances from the previous night, and I would interpret that there was a lot of anger there which wasn’t like Lance. He wasn’t that – that type of employee.” Mr Brose accepted that he expressed to the plaintiff concerns that his conduct could be an assault of a patient using excessive force, but he was not challenged about his recollection of the plaintiff’s story of being vigilant of the patient’s violet propensity and that he’d ‘had some interaction and said that the patient had jumped up and taken a swing at him’.
The plaintiff completed a WorkCover claim with the assistance of Ms Spalding. Ms Spalding also noted the plaintiff’s fatigue with patient assaults generally and detailed the nature of the previous assaults. The Workplace Incident Report describes an assault by Rodney Pascoe (identified as the male patient).[18] This was completed by the plaintiff and counter-signed by two more senior staff members on 20 January 2014. The defendant’s case summary also records that the patient assaulted the plaintiff.
[18]Exhibit 1 pages 365 – 366.
About 39 hours after the incident the plaintiff went to Dr Ireland for a certificate for his claim. During the consultation the plaintiff pointed to the emergency department incident as the reason for his attendance, but his description of his emotional state focused on over-time and historical reactions related to multiple previous assaults. Seemingly in this historical context, the plaintiff told the doctor of often feeling scared at work, being concerned about his daughter going out, his home security modifications and paranoia when out in public. This is consistent with various reported incidents contained in the case summary involving the plaintiff:
1. On 3 August 2009 an emergency department patient was abusive and struck out at the plaintiff, pushed over a computer monitor and punched him in the shoulder and chest, resulting in soft tissue injuries to plaintiff’s shoulder, upper arm/elbow/forearm, wrist, and thumb.[19]
2. On 3 November 2010 a patient was verbally abusive and threatened to kill the plaintiff as he was leaving the emergency department for a smoke.[20] No injury is recorded.
3. On 19 October 2013 a patient threated the plaintiff with a dangerous weapon (concealed in a plastic box) and physical assault in the emergency department.[21] No injury is recorded.
[19]Exhibit 1 – Doc. 2.
[20]Exhibit 1 – Doc. 3.
[21]Exhibit 1 – Doc. 4.
In due course a detailed investigation process ensued in accordance with guidelines and Ms Vine, of the defendant’s occupational health and safety team under Mr McGovern, undertook an Incident Analysis Report. Some contact was made with the plaintiff as file noted. The report was finalised on 26 February 2014.
What is the plaintiff’s particular injury?
The plaintiff suffered long term orthopaedic and psychiatric injuries.
Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee resulting in a 1 per cent whole person impairment, and stiffness to his shoulders, as well as bearing pre-existing degenerative changes in his lumbar spine as well as osteoarthritis in his left knee. Clearly any physical injury is attributable to the physical altercation with the patient.[22]
[22]Exhibit 14.
Dr Cantor, psychiatrist, diagnosed the plaintiff’s injuries as being chronic post-traumatic stress disorder; either chronic adjustment disorder with depressed mood or major depressive disorder; chronic pain disorder associated with psychological factors and general medical condition; and alcohol abuse in near full remission.[23] Professor Whiteford diagnosed the plaintiff with post-traumatic stress disorder and mild generalised anxiety.[24]
[23]Exhibits 11 & 12.
[24]Exhibit 16.
In a psychiatric injury case like this, distinct issues arise about the trauma mechanisms involving the initial altercation with the patient, the plaintiff’s treatment in the aftermath, and other contributing factors. Whilst the psychiatric expert witnesses, Dr Chris Cantor and Professor Harvey Whiteford, agreed that the incident on 19 January 2014 was the major cause of the plaintiff post-traumatic stress disorder, they differ in their view of the trauma mechanisms.
Dr Chris Cantor provided reports of 22 June 2015 and 27 June 2018 and later affirmed a file note made on 17 January 2019.[25] His opinion is largely predicated upon the plaintiff’s pre-trial perception of the incident and his report of earlier traumatic incidents during his time in the Navy, as a paramedic in the night, and as a nurse working in the Cairns Base Hospital from June 2007; as well as the plaintiff’s medical records.
[25]Exhibit 11, 12 and 13.
Against this background, Dr Cantor diagnosed the plaintiff with post-traumatic stress disorder caused by multiple stressors to which he had been exposed. He attributed the predominant cause of the plaintiff’s injury was the altercation with the patient on 19 January 2014. He considered it unlikely that past exposures to violence and social depravity had been major factors in the plaintiff’s traumatic reaction; although they may have promoted resiliency (eg. in familiar and expected threats), they may have also sensitised the plaintiff to later post-traumatic stress disorder under different circumstances as suggested by Professor Whiteford, and promoted vulnerability (eg. in unfamiliar and or unexpected threats). He adhered to his earlier opinion that a number of other workplace incidents in the emergency department were likely to have sensitised the plaintiff to a more adverse reaction to the incident, especially having alerted the defendant to the risks posed to staff.
Notably, the plaintiff’s account relayed to the doctor for his 2015 report conveyed a more serious, prolonged and violent event. The account suffered much of the same flaws as exposed during the plaintiff’s evidence. He did not shake the patient’s foot. The blanket was not pulled off the patient’s face but was pulled off his entire body at once. The patient’s reaction was not sudden after that, instead it was a delayed as the plaintiff seemed to rouse from an intoxicated sleep in a slow and unsteady manner; first sitting then pausing briefly before standing and punching. The patient did not attack by throwing multiple punches and kicking. He is seen to throw one punch that likely hit the plaintiff. The patient was not “the same size as Mr Armstrong-Waters who is strongly built.” The whole incident did not last “between five and 10 minutes,” and the plaintiff’s belief that he was “fighting for his life” is incongruent with his conduct and trying to calm the patient. It seems to me that the plaintiff quickly and effectively gained a controlling hold of the patient’s right arm after very a brief wrestle on the floor. The patient showed no resistance as he was marched by the plaintiff through and out of the emergency department waiting room.
In my view the flawed account of the incident and aftermath provided by the plaintiff in 2015 and relied upon by Dr Cantor has undermined the weight of his opinion evidence. Dr Cantor’s subsequent report of 27 June 2018 was in the nature of a document review without seeing the plaintiff, thereby perpetuating the problem reducing the weight of the evidence. Further, it seems to me that the doctor misapprehended the nature of the incident relative to past multiple assaults and symptoms recorded in the Apple Tree Creek Medical Centre notes,[26] including flashbacks to an incident that occurred in 1981 reported by the plaintiff to Dr Ireland on 21 January 2014.
[26]Exhibit 9.
As to the aftermath, Dr Cantor noted the plaintiff’s perception of an unsupportive reaction by his duty manager to “likely to have further fuelled a more severe traumatic response.” In this regard the doctor noted in his 2015 report that when the plaintiff returned to his computer in a shaken state of mind immediately after the incident on 19 January 2014, his duty manager (presumably a reference to Ms Kenneally) criticised him for removing the patient from the emergency department and telling him that he used unreasonable force and, after the plaintiff responded that he believed his life had been at risk, the duty manager remained unsupportive and demanded paperwork be completed before he left. In his 2018 report he noted that (although without the benefit of interviewing the plaintiff again) on 21 January 2014 the plaintiff was accused by the management (presumably a reference to Mr Brose) of having inappropriately restrained and removed the patient.
Closer to trial, in the file note taken on 17 January 2019, Dr Cantor noted that the most important thing to do after a traumatic event is to lower the arousal levels of the subject and he explained that this is achieved by not being confrontational and accepting their version of events. He opined that if a subject is met with confrontation after a traumatic event, arousal levels will further increase. In contrast, if support in the workplace is offered to the subject, the arousal is lowered and generally the symptoms are resolved sooner. Dr Cantor testified that whilst the previous professional approach is to get the subject to express his feelings and focus on the aftermath, further research has found it “more helpful to offer the subject something like a cup of tea and sit down and offer a lot of sympathy to his experience”.
During his evidence, Dr Cantor conceded that the assistance offered by Mr Brose and Ms Spalding was sensible in relation to seeking medical assistance or the assistance of the employee assistance scheme.[27] However, I think Dr Cantor misapprehended the exchange between the plaintiff and Ms Kenneally, in the context of their heated conversation wherein she was trying to understand what occurred out of her proper concern for both the plaintiff and the patient rights, as well as the nature of the conversation with Mr Brose.
[27]T2-18/23 - T2-19/41.
I prefer the evidence of Professor Whiteford over Dr Cantor.
Professor Whiteford provided two reports dated 15 June 2015 and 6 February 2018 each following an interview and examination of the plaintiff and collateral material.
Professor Whiteford concluded that the incident on 19 January 2014 was not the sole cause of the plaintiff’s post-traumatic stress disorder. He attributed the onset of overt post-traumatic stress disorder symptoms from an accumulation of traumatic events over time invoking the concept of allostatic load. He relied upon the plaintiff’s reported traumas he encountered during his time as a Navy medic and Navy medical officer, as a paramedic in the United Kingdom and events at the Cairns Hospital before January 2014. He considered these as contributing factors with the events of January 2014 triggering the symptoms reaching the threshold for a diagnosis, aggravated by his employer’s accusation that he had behaved inappropriately towards that patient when restraining him.
Professor Whiteford noted the plaintiff’s exposure to “very many traumatic incidents” while serving as a Navy medic, Navy nursing officer and ambulance officer. He recorded the plaintiff being exposed to “many incidents where he had to deal with dying and deceased individuals, some of whom had been the victims of major trauma. He also reported there were many occasions where he was threatened and sometimes assaulted by individuals” in the course of his former vocational duties. The professor also points to the plaintiff’s flashbacks to an old incident he was involved in in 1981 (as reported to Dr Ireland on 21 February 2014) - “flashback to motorcycle incident when younger in the Navy … with all the Harleys around Cairns”.
As to previous stressors in the Cairns Hospital setting, the plaintiff reported multiple traumatic incidents during the period of his work in the emergency department from June 2007 until January 2014. He associated an escalation in violence with illicit substance abuse in the community and alcohol abuse especially amongst indigenous males. The professor relied upon several incidents reported by the plaintiff as stressful, including: after mid-2013 and individual threatened to cut heads off people with a machete in the emergency department; at the end of 2013 and male patient lunged at him and a security officer with a flick knife; in November or December 2013 another male brought an esky containing sharp knives and other dangerous objects into the emergency department; otherwise there was an incident of actual or threatened violence in almost every shift and he personally received threats involving knives, chainsaws, needles and being punched. These events were also overlaid by the plaintiff’s role in seeking changes to avoid future risks.
The plaintiff’s account of the incident of 19 January 2014 is somewhat understated in reports by Professor Whiteford but generally accords with the evidence adduced at trial. Like Dr Cantor (initially), the professor attributes the plaintiff’s recollection of being accused by management of acting inappropriately in the way that he restrained and removed the patient as occurring on 21 January 2014 after one day of leave, without any reference to his encounters with Ms Hood, Ms Kenneally or Mr Brose. Nevertheless, Professor Whiteford accepted that the plaintiff’s symptoms were aggravated by the plaintiff being accused of inappropriately dealing with the patient when restraining and ejecting him. He did not accept, that the difference between all the former trauma and the subject incident and its aftermath, that absent the post incident aggravation – the plaintiff’s enduring post-traumatic stress disorder would have been avoided.
The plaintiff also seeks an uplift for his physical injuries suffered in the altercation. Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee resulting in a 1% whole person impairment, stiffness to his shoulders, and had aggravation of pre-existing degenerative changes in his lumbar spine as well as osteoarthritis in his left knee. In my view no further uplift is warranted having regarded the plaintiff’s physical injuries, and the nature and extent of the broad considerations in assessing his dominant psychological injury.
It seems to me that after taking these matters into account, the plaintiff is appropriately assessed with an ISV of 8 pursuant to Table 4 in Schedule 12 of the regulations.[76]
[76]Calculated at (ISV 8 - 5) x $1580 + $6550 = $11,290 under Item 2 of Table 4 of Schedule 12.
Therefore, I assess general damages in the sum of $11,290.
Economic loss
The plaintiff argues that as a consequence of the injuries, he has been unable to return to work, and relied upon Dr Cantor’s evidence to that effect.
The defendant argues that the plaintiff has a capacity to work in a different area of nursing or other vocation. It relies upon Professor Whiteford’s acknowledgment that the plaintiff cannot return to his previous position, but says he is able to return to remunerated employment in a wide variety of nursing, caring or other roles, not involving potential exposure to violence and aggression.
The defendant properly concedes that the plaintiff is entitled to loss of earnings over the period he was assessed as unfit to work whilst in receipt of WorkCover weekly benefits. This is a sum of $51,028.96.[77] It also concedes that the plaintiff could not have returned to work as an emergency department nurse, and that there should be some assessment to reflect that inability over the period since WorkCover benefits ceased until the end of the trial being 29 April 2019. It is submitted an appropriate measure is the difference between an emergency department nursing role and a role such as day surgery that would not have involved weekend and night shifts might sensibly be measured at $200.00 net per week.
[77]Exhibit 25, page 6.
The evidence of Ms Kenneally, Mr Brose and Ms Spalding was of the plaintiff forming an intention to cease work and “go to WorkCover” soon after the subject event and before any medical opinion had been obtained. He was also unreceptive to engaging in the employment assistance program. Ms Spalding noted the plaintiff’s unwillingness to pursue other employment options.[78] All of these matters are entirely consistent with the circumstances and his state of mind at the time, and not reliable indicia of wanting to stop working. It seems to me that until the incident the plaintiff continued to approach his work conscientiously with dedication and enjoyment; he was looking forward to going into senior management, and he was likely to continue working until conventional retirement age.
[78]Exhibit 24.
The plaintiff made an early genuine effort to return to his work, then attempted study in counselling and undertook challenging voluntary unpaid work.
The plaintiff’s attempt to return to work with the defendant were unsuccessful. But do not glean any insurmountable occupational limitations in his nursing ability for doing so, rather other factors spoiled his return, such as the defendant’s poor reception, allocation of mundane tasks and workplace disorganisation. He did not complete his counselling course due to impaired levels of concentration and motivation. Whilst he continues in volunteering with returned servicemen, he has struggled with hospital visits and contact with people with like challenges.
While not ultimately successful, the plaintiff continues to show a good work ethic, cautious resilience, improved motivation and some adaptability in a range of activities. I think he does have prospects of being able to return to remunerated employment in the future.
The court must make a practical assessment of the likelihood of the plaintiff obtaining employment in some new or other occupation. In Arthur Robinson (Grafton) Pty Ltd v Carter,[79] Barwick CJ observed that lost earning capacity “ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate”, a remark interpreted by Malcolm CJ in Morgan v Costello[80] as supporting the proposition that “the Defendant who contends the Plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the Plaintiff is capable of performing and what jobs are open to a person with such capacity.”
[79]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657.
[80]Morgan v Costello [2004] WASCA 260 at [99] per Malcolm CJ (Murray and Wheeler JJ agreeing).
The defendant has produced evidence of potential other employment and I am persuaded that the plaintiff would be successful in obtaining and retaining such employment.[81] The tenor of the defendant’s proof through Professor Whiteford was of an exclusionary nature consistent with the scope of his opinion about the plaintiff’s incapacity for work. Accordingly, I find that the plaintiff is incapable of working in nursing, caring or another role in an emergency department, hospital or other environment where he is at risk of exposure to antagonism, abuse, threats, insult, violence or aggression. He also has faced other occupational challenges with the registration being voluntarily suspended out of his concern of for his anger issues and fear of hurting patients.
[81]South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at 73-74, New South Wales v Moss (2000) 54 NSWLR 536 at [64] and [71].
He does face some hurdles and delay re-entering the workforce. He will be unable to return to work as a registered nurse until and unless his registration is reinstated. His age and absence from work will disadvantage him in the open labour market. However, I do not accept that he is commercially unemployable. His vocational skills and experience will stand him in good stead in suitable areas of need. In the circumstances it is not possible to precisely calculate future economic loss and a global sum is preferred. Any award should also reflect the occupational exposures of his vocation with the prospect of the development of a post-traumatic stress condition from another bellicose event, having regard to a history of past exposure with pre-existing vulnerabilities reported to Dr Ireland, and the plaintiff’s exasperation, frustration and feeling “burnt out” with ED nursing as articulated to Ms Kenneally, Mr Brose and particularly Ms Spalding.
While the plaintiff’s efforts of gaining remunerative work have been unproductive, I do not accept that that he has no prospect of work in less risky work environments whether in nursing, care or allied administration. He was unconvincing in his rejection of the defendant counsel’s propositions of vocations in areas of day surgery such as colonoscopy and post-care procedure. I think with time and a progressive outlook his work prospects are relatively optimistic with an improving capacity to work more consistent with the opinion of Professor Whiteford. More conservatively, I think the plaintiff had a graduated improvement in his working capacity after 3 years, with a further improvement after 2 years, and stabilisation after another year enabling his to work in areas of nursing, care and allied administration commensurate with his impairment, qualifications, skills and experience.
Past Economic Loss
On this basis, I accept that diminution of the plaintiff’s earning capacity at this phase of his treatment, recovery and rehabilitation has realised a true financial loss, but with a graduated improvement in his earning capacity over the 327 weeks since the incident.
I assess the plaintiff’s past economic loss at $237,760 calculated at $187,200.00 at $1,200 net per week for 156 weeks, then two third loss of earning capacity, $83,200.00 at $800 net per week for 104 weeks, and further one third loss of earning capacity, $26,800.00 at $400 net per week for the 67 weeks and then applying a discount of about 20 per cent for the plaintiff’s vicissitudes of life and vocational contingencies.
I also allow interest of $8,219.76 on past economic loss (excluding WorkCover weekly benefits and lumps sum payments) using the agreed 10 Year Treasury Bond rate 0.7% calculated for the period from the incident until this judgment.[82]
[82]$186,731.04 (being $237,760 less $51,028.96 total WorkCover weekly benefits and lump sum) x 0.7% pa x 327/52 weeks (19/1/14 – 24/4/20) = $8,219.76.
I will allow past superannuation loss of $22,587.20 using the average rate for past employer superannuation contributions over the period since January 2014 of 9.5 per cent.
Future Economic Loss
An award for future economic loss should equate to the reduction in the plaintiff’s earning capacity to the extent that it may be productive of financial loss. This is difficult to assess with precision using a defined weekly loss since the plaintiff has not realised a successful return to work.
Section 306J of the WCRA provides:
306J When earnings can not be precisely calculated
(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
(4) The limitation mentioned in section 306I(2) applies to an award of damages under this section.
In Allianz Australia Insurance Limited v McCarthy,[83] White J remarked about the analogous provision, s 55 of the Civil Liability Act, as follows:
[83]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.
“[47] ... Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law.
[48] In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:
“… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”
That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:
“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the diminution of … earning capacity is or may be productive of financial loss.”
[49] In Nichols v Curtis Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:
“The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.”
[50] His Honour continued:
“Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”” (Footnotes omitted.)
The plaintiff will be 60 years old in December and is likely to retire near to 67 years of age.
I will allow a global award of $100,000 for future economic loss. In doing so, I rationalise the outcome by adopting a loss of earning capacity of $400 net per week and using the 5 per cent multiplier of 309.4 for 7 years to achieve about $123,772.38, and then applying a discount of about 20 per cent for the plaintiff’s vicissitudes of life and his vocational contingencies.
I also allow $11,000 for future superannuation being 11% of future economic loss
Special Damages
There is no dispute about the plaintiff’s claim to recover the expenditure by WorkCover for medical treatment, rehabilitation and travel of $16,517.94,[84] Medicare refund up to 16 February 2019 of $1,091.00 and claimed out of pocket expenses of $1,250.00 for medication and travel.
[84]Exhibit 25.
The plaintiff also claims vouched expenses of for massage therapy and psychological treatment $8,485.00.[85]
[85]Exhibit 2, annexure 15 and 16.
I will allow part of those expenses of $3,685.00 in relation as reasonable and necessary expenses consistent with the nature and extent of his psychological injuries and continuing sequalae.
As for the massages, the plaintiff says that he received regular massages to treat his physical injuries, but he is not specific about the area or purpose of the treatment. He has produced a nondescript tax invoice/statement dated “January - April 2014” to vouch for 30 massages all of 90 minutes duration at the cost of $160 per treatment. The plaintiff testified that he continued to experience pain in his shoulders, back and knees since the incident but provides no details about the therapeutic benefit of massage treatment.
Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee, had stiffness to his shoulders, and aggravation to pre-existing degenerative changes in his lumbar spine and osteoarthritis in his left knee.[86] The doctor does not specifically remark about the need for massage treatment.
[86]Exhibit 14.
I accept that massage may provide some muscular pain relief to stiff shoulders, but I am unable to say the same for the other conditions. Therefore, I allow part of the massage expenses in the amount of $960.00 being about 20% of the time per massage for 30 massages.
I allow the plaintiff’s proved expenses of $23,503.94.
I also allow interest of $259.49 on out of pocket special damages of $5,895.00 using the agreed 10 Year Treasury Bond rate of 0.7% calculated for the period from the incident until this judgment.[87]
[87]$5895 ($1,250 + $3,685 + $960 out of pocket) x 0.7% pa x 327/52 weeks (19/1/14 – 24/4/20) = $259.49.
Future Expenses
Dr Shepherd opined that the Plaintiff may benefit from an arthroscopic meniscectomy of his right knee, however, I received no evidence of time or cost of that surgery, post-operative treatment or rehabilitation. I make no allowance for this.
I have not holistically accepted either Dr Cantor or Professor Whiteford in their assessments, which impacts the need for further psychological treatment. Given my remarks about their approaches and tending to an impairment assessment closer to Dr Cantor’s constrained PIRS assessment, I think plaintiff does require continuing treatment and support likely comprising:
1. 8 sessions with a Psychiatrist over 6-12 months at a cost of $325 per session;
2. 15 to 18 psychological sessions over 12 months at $228 per session;
3. Use of anti-depressant medication at $38 per month for up to 2 years;
4. 8 to 10 GP mental health care consultations per year for 2 to 3 years and then 4 per year for a further 5 years at a cost of $160 per attendance.
I allow the plaintiff’s future medical expenses in a global sum of $10,000 having regard to his likely future expenses discounted into the future.
Quantum Summary
In summary, I assess $357,073.49 including interest as damages after refunds to WorkCover is as follows:
General damages
$11,290.00
Past economic loss
$237,760.00
Interest on past economic loss
$8,219.76
Past superannuation
$22,587.20
Future economic loss
$100,000.00
Future superannuation
$11,000.00
Past special damages
$23,503.94
Interest on past special damages
$259.49
Future special damages
$10,000.00
Sub-total
$424,620.39
Less WorkCover refund
-$67,546.90
Total
$357,073.49
Conclusion
For these reasons, subject to any arithmetical correction:
1. I will give judgment to the plaintiff against the defendant in the sum of $357,073.49 including interest.
2. The defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) on and from 13 October 2015 to be assessed on the standard basis.
Judge DP Morzone QC