DISTRICT COURT OF QUEENSLAND
CITATION:
Robertson v State of Queensland [2020] QDC 185
PARTIES:
MAUREEN JOY ROBERTSON
(plaintiff)
v
STATE OF QUEENSLAND
(first defendant)
and
GOLD COAST HOSPITAL AND HEALTH SERVICE
(second defendant)
FILE NO/S:
3311/15
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
6 August 2020
DELIVERED AT:
Brisbane
HEARING DATES:
16, 17, 18, 19, 20, 23, 24, 25 March 2020 and 25 June 2020
JUDGE:
Barlow QC DCJ
ORDER:
Judgment for the defendants
CATCHWORDS:
TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – FACTORS – FORSEEABILITY – plaintiff claims bullying, badgering and mobbing at work caused psychiatric injury – whether a duty of care to avoid a psychiatric injury arose – whether the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable by the defendants – whether the defendants had notice that the plaintiff was at risk of suffering psychiatric injury
EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – FORESEEABILITY – whether a duty of care to avoid a psychiatric injury arose – whether the defendants had notice that the plaintiff was at risk of suffering psychiatric injury
TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – DAMAGE AND CAUSATION – the plaintiff suffered psychiatric injury while employed by the defendants – whether the plaintiff’s psychiatric injury was caused be the defendants’ breaches of any duty of care
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305N, s 306L, s 306O, s 306P
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) s 129, s 130, sch 9, sch 10, sch 11
Calogeropoulos v Vergottis [1968] 2 Ll Rep 403, cited
Eaton v TriCare (Country) Pty Ltd [2015] QDC 173, cited
Eaton v TriCare (Country) Pty Ltd [2016] QCA 139, applied
Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, cited
Hayes v State of Queensland [2016] QCA 191, applied
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, cited
Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited
Robinson v State of Queensland [2017] QSC 165, cited
State of New South Wales v Paige (2002) 60 NSWLR 371, cited
Woolworths Ltd v Perrins [2015] QCA 207, cited
COUNSEL:
SD Anderson for Ms Robertson
RC Morton for the defendants
SOLICITORS:
Richardson McGhie for Ms Robertson
McInnes Wilson Lawyers for the defendants
TABLE OF CONTENTS
Introduction
The witnesses and other evidence
The incidents
1 April 2011 – patient death
6 April 2011 – accusation of incompetence with insulin
7 April 2011 – plans to retire
19 May 2011 – “just the changes”
11 August 2011 – infusion pump and alleged abuse about observations
The lead-up events
The particular alleged conduct
5 November 2011 – ST elevation
19 December 2011 – alleged medication error
6 February 2012 – ongoing concerns, lost confidence
18 March 2012 – Code Blue incident
28 March 2012 – accusation of incompetence on Code Blue
10 April 2012 – informing RNs about supervision
12 April 2012 – rude and condescending attitude
May 2012 – accusation of incompetence about low blood pressure #1
15 May 2012 – accusation of incompetence about low blood pressure #2
22 May 2012 – global assessment, calculation tests and education
5 June 2012 – conflicting directions
13 July 2012 – abuse about leg dressing
27 July 2012 – not administering medications unsupervised
17 August 2012 – abuse about chest pain
Other relevant events
Global assessment in August 2012
The hospital’s concerns about Ms Robertson’s performance
First complaint to AHPRA – September 2012
Work at Robina
Second complaint to AHPRA – June 2013
Psychological assessment – January 2014
Was Ms Robertson bullied, badgered or mobbed?
Did a duty of care arise?
Legal principles
Did the circumstances alleged give rise to a duty?
Did the hospital breach any duty of care?
Ms Robertson’s illness
Was Ms Robertson’s psychiatric injury caused by any breach of duty by the defendants?
Damages
General damages
Special damages
Past economic loss
Future loss of earning capacity
Future medical expenses
Total nominal damages
Conclusions
Introduction
Maureen Robertson was an endorsed enrolled nurse (EEN) at the Gold Coast Hospital in 2011. She had gained her qualification as an enrolled nurse in 2006. She had worked night shifts on a permanent basis in the cardiology unit since 2008.
Ms Robertson claims that, over a period of time during 2011 and 2012, she was badgered, bullied and mobbed[1] by colleagues at work, most of whom were registered nurses (RNs). Ms Robertson claims that this caused her a psychiatric injury, namely chronic adjustment disorder with mixed anxiety and depressed mood, with consequent loss of her career from 2013. She alleges that the defendants had a duty of care, at least from December 2011, to take reasonable steps to avoid causing her a psychiatric injury, they breached that duty and that breach caused the injury. She claims damages for breach of contract and negligence. Liability and damages are in issue.
[1]I take this use of the word “mobbed” to mean that the nurses ganged up on her, in the sense of combining against her.
At the time, two RNs and an EEN would be rostered on for the night shift in the cardiology unit, also known as ward 9C.[2] Two additional RNs would be rostered in the neighbouring coronary care unit (CCU) for night shifts.[3] During the day, there would be more nurses rostered to work in both units.[4] Although the two units were separate wards, they shared a medication room and the nurses in each unit regularly interacted with and, if necessary, helped the nurses on duty in the other unit. Indeed, the heart rates and other vital signs of some of the patients in ward 9C were monitored on equipment present in the CCU rather than in ward 9C itself.
[2]T2-28:18-19.
[3]T2-28:25-40.
[4]T2-28:44-46.
The defendants deny that Ms Robertson was badgered, bullied or mobbed. They also deny that they owed her a duty of care to take reasonable steps to avoid causing her psychiatric injury and that, if they did owe such a duty, they breached it. They also contend that any breach of any duty owed did not cause Ms Robertson a psychiatric injury. They admit that Ms Robertson has a minor adjustment disorder, but say it was not caused by any breach of duty by them. They contend that any psychiatric injury that may have occurred was, at most, a consequence of their reasonable and proper actions and interventions that were the result of genuine and reasonable concerns as to Ms Robertson’s competence to perform the tasks required of her as an EEN. In particular, they contend that they had genuine concern for patient safety as a result of Ms Robertson’s inability to display the necessary degrees of competence to administer drugs and otherwise to attend to patient care needs at a reasonable standard.[5]
[5]Further amended defence, paras 3(c), 5, 6(d) and 6(g) in particular. Detailed particulars of the concerns as to Ms Robertson’s competence were set out in amended particulars of the defence that were provided separately.
The principal issues that arise are whether Ms Robertson was treated in the manner she alleges and, if so, whether it caused her a psychiatric injury; whether the defendants had genuine and reasonable concerns about her competence as an EEN; whether the defendants at any stage knew enough facts about the plaintiff’s concerns and condition to give rise to a duty of care described above; whether they breached any duty and, if they did, whether that breach caused Ms Robertson’s injury and loss.
At the time, the Gold Coast Hospital was operated by a department of the State, which is why both entities are defendants. However, the hospital was treated almost as a separate entity and it was admitted that one or other entity employed Ms Robertson. I shall treat them equally (as the parties have done) for the purposes of this proceeding. Even though, at times, I will refer only to the hospital, I intend by those references to refer to both defendants.
The witnesses and other evidence
As will be seen from my recounting of the evidence, the parties’ witnesses differed substantially in their recollections of many of the relevant incidents. Therefore, it is necessary to consider the reliability of the witnesses’ evidence (particularly where they differed) and of the contemporaneous documents. At this stage, I make general comments about these matters, with reference to particular witnesses and documents. In considering the evidence I will make comments, where I consider it appropriate, about the reliability or truth of some particular witnesses or evidence.
Ms Robertson struck me as attempting honestly to recall what happened on each occasion about which she complains. However, it became clear that her recollection of events has been considerably affected by her perception that she was victimised by other staff at the hospital. I have been unable to reconcile a good deal of her evidence with evidence of other witnesses and some of the contemporaneous documents kept by the hospital. In most cases where there is a conflict of evidence, I accept that of other witnesses in preference to that of Ms Robertson, principally because I consider the other evidence to be more reliable and more plausible and Ms Robertson’s evidence to be substantially coloured by her perception of events rather than being accurate recollections.
Many of the relevant events are also the subject of entries made by Ms Robertson in a diary that she intermittently kept at relevant times.[6] It was not suggested that the entries were not, in most cases, made soon after the alleged events occurred. Normally such contemporaneous diary entries would constitute reliable evidence of what had occurred, as contemporaneously created documents are more likely to be an accurate record than evidence given from memory years after the events. However, as with her oral evidence, Ms Robertson’s diary entries appear to me often to have been influenced by her perceptions of events rather than what actually happened. She had a tendency, both in her diary entries and in her oral evidence, to describe the events in a way that shone a poor light on the other participants in the events or that failed to accept that she might have made errors, or have inadequate knowledge, herself. As will become apparent, this was particularly evident in her inability to see that the efforts that the hospital management put into her further education or re-education were for her potential benefit and to ensure the safety of patients, rather than (as she perceived) part of a programme of harassment and bullying intended to fabricate reasons to dismiss her or to encourage her to resign.
[6]Extracts from her diary were tendered in evidence, but eventually the entire diaries for 2011 and 2012 were tendered: exhibits 16 and 17. The first entry in the 2011 diary is for 1 April 2011.
The plaintiff’s adverse perception of the actions of other nurses and staff of the hospital was demonstrated, not only by her evidence about the hospital staff who, she contends, were bullying and mobbing her, but also her evidence about other staff (even those with whom she got on or with whom she had not previously had any dealings), in so far as their statements were critical of her. Her failure to acknowledge that there may be good reasons for the hospital and its staff to have genuine concerns about her abilities was also indicated by some of the other evidence. For example, Ms Robertson worked at the Robina Hospital for about three months in late 2012. She said she enjoyed working there and that she felt valued there. However, a global assessment of her work that was undertaken toward the end of her period there concluded that she did not work at a competent level. That was also the view of an assessment carried out at the Gold Coast Hospital in August 2012. Ms Robertson contended, in her evidence, that the earlier assessment was conducted with a preconceived intention to assert that she was not competent, which seems entirely contrary to the facts about that assessment and the person who conducted it. She also contended that some of the criticisms of her work arose because her conduct was affected by working with people who she thought were out to get her. She did not feel that way while working at the Robina Hospital, yet she was still found not to be competent.
Another example concerns her work with a nurse with whom she got on well, Roberto Oraiz. She worked as a supernumerary[7] with him on 19 April 2012. In his feedback on her performance, he criticised some of her actions in the course of patient care. In her evidence about those criticisms, she did not accept that she got things wrong, but contended that he was wrong in how he did things.
[7]That is, she did not have responsibility for any patients, but rather was to observe and be observed as part of a process of ongoing education for her.
Mr Morton, appearing for the defendants, submitted that Ms Robertson is both paranoid and narcissistic and that, at least on one occasion in the course of her evidence, she was lying. I do not consider that she lied at any stage during her evidence, but she has a view of others’ actions that is coloured by her perception of having been bullied out of a job and into psychiatric illness. She feels that she was unfairly criticised and accused of poor practice, as a consequence of which she will not accept that she committed any errors, nor that others were justified in criticising her.
The plaintiff and her counsel were particularly critical of two RNs who worked often with the plaintiff: Alicia Harvey and Michelle Codd. In her final address and written outline of submissions, Ms Anderson (appearing for Ms Robertson) contended that Ms Harvey made up events which she reported and made up some of her evidence in court. A prime example is that she gave evidence that Ms Robertson had drawn up 10 milligrams too much of Clexane and at least gave her the impression that she always drew up too much and that she administered the excess medicine to patients. If that were the case, it could be dangerous to patients (although, as Ms Harvey pointed out, the dose would always be checked by another nurse before it was administered), yet Ms Harvey did not report it, even though she apparently reported that Ms Robertson had drawn up too much insulin.[8] In fact, Ms Harvey was correct in saying that, even if Ms Robertson drew up too much of either medicine, she would not be able to administer it, as both medicines had to be checked by another nurse before being given to a patient. Ms Harvey said that she got the impression that Ms Robertson had overdosed patients, but that was not possible unless Ms Robertson also failed to get the medicines checked by another nurse. Therefore, Ms Harvey’s evidence in this respect (or her “impression” that Ms Robertson might overdose a patient) was an exaggeration.
[8]T7-156:32 to T7-157:24; T7-167:45 to T7-170:28; exhibit 2, tab A.
Ms Anderson submitted that Ms Harvey was therefore lying about that and her evidence generally was unreliable. I do not accept that submission. Ms Harvey did come across to me as disliking Ms Robertson but, as a result of a particular incident, she had concerns about Ms Robertson’s ability to see sufficiently well to measure – or to check another nurse’s measurement of – the correct doses of some medicines.
Ms Anderson also appeared to contend that both Ms Harvey and Ms Codd were lying in giving evidence that Ms Harvey was not working on the night shift on 1 April 2011, which Ms Robertson says was the case. In essence, her submission amounts to an assertion that they conspired together to agree to give that evidence, presumably in order to show Ms Robertson as having an incorrect recollection of events that night.
Ms Harvey and Ms Codd appeared to me to be very supportive and close friends of each other. They also appeared to me to dislike Ms Robertson and to consider her to be an incompetent nurse. I consider it likely that their dislike stemmed mostly from their view of her competence as a nurse, but that view and their dislike fed off each other. Ms Harvey, in particular, seemed to me to be prone to exaggerate Ms Robertson’s poor qualities (as she saw them).
The effect of these conclusions about those two witnesses is that I treat their evidence with some circumspection. However, I do not consider that either Ms Harvey or Ms Codd was lying. In many respects their evidence about Ms Robertson’s apparent incompetence, especially concerning medicines, but also her general patient awareness, is similar to – and therefore partly corroborated by – the evidence of other nurses who worked with Ms Robertson: not only on night shifts but also when she worked day shifts under the supervision of a number of different nurses. Therefore, even allowing for some exaggeration by Ms Harvey and, perhaps, by Ms Codd, there is other evidence to support some of their views.
I found Mr McPhee to be honest and his evidence reliable. He was clear in distinguishing between what he remembered and what he did not. He spent quite some time with Ms Robertson in 2012 and, both from his own observations and from reports of the observations of others, he had and maintained concerns about Ms Robertson’s competence. As clinical nurse educator, he was well qualified to form those views and, as will become apparent, I consider that he had reasonable grounds to form them. He also made persistent attempts to provide Ms Robertson the further education and support that she appeared to need to improve her competence and her self-confidence. His ultimate view was that his attempts did not bear sufficient fruit.
Ms Naylor remembered very little about the events themselves. Like Ms Harvey, she appeared to me to be a person who would be forthright in expressing her views and she could be brusque in doing so. I consider her to have been honest and reliable in giving her evidence and that her contemporaneous notes accurately summarised the events that they recorded.
I have no reason to doubt that the other witnesses gave honest evidence of their recollections of events.
I shall make comments about particular aspects of the witnesses’ evidence in the course of considering the respective incidents about which Ms Robertson complains.
The incidents
Ms Robertson’s claim was principally based on a number of incidents that she alleged occurred during the course of her employment. Particulars of those incidents were given, although her case was advanced on the basis that the incidents were not exhaustive examples of the hospital’s alleged conduct. Before and during the trial, I made it clear that she would not be permitted to conduct her claim on the basis of any incidents or other facts not expressly pleaded[9] as either having given rise to the relevant duty of care, or constituting a breach of such a duty, or demonstrating that a breach of duty caused her psychiatric condition.[10]
[9]“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and ... to define the issues for decision” - Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286.
[10]The fact that she had a psychiatric condition was admitted, although the extent of that condition was not (amended statement of claim paragraph 5, further amended defence, paragraph 5), but the hospital did not call any evidence contrary to the plaintiff’s psychiatric evidence as to the extent of her condition, nor did it challenge that evidence. I consider that evidence later.
The following is a summary of the evidence and my findings in relation to each of the alleged incidents, together with other relevant events that were raised in the evidence.
1 April 2011 – patient death
Ms Robertson claims that, on 1 April 2011, she was working a night shift with two registered nurses, who she said were Alicia Harvey and Michelle Codd. During that shift, a patient on the ward died and Ms Robertson said she was not offered any comfort, although Ms Codd was offered comfort in her presence.[11]
[11]Amended statement of claim, para 3(a).
Ms Robertson gave evidence that she believed she was alone on the ward when a nurse from the CCU alerted her to the fact that a patient had died.[12] She said she was not qualified to be alone on the ward and the RNs had not told her they were leaving the ward, as would normally be done.[13]
[12]T2-33:23; T2-33:45 to T2-34:7; T2-34:13-16. It appears the patient was being monitored from CCU: T2-35:44.
[13]T2-35:15-24.
Ms Robertson said Ms Harvey and Ms Codd returned to the ward and, on learning that the patient had died, comforted each other.[14] Ms Robertson said she was very upset at the time, as she had assisted the patient to bed shortly before she died, she was not initially aware of the patient’s death and she realised that she had been alone when the patient had died. She said she felt left out, as she was not offered any comfort, while the other nurses comforted each other.[15]
[14]T2-34:20-25, 44-47.
[15]T3-78:1-10. Ms Anderson submitted that she relied on this and other evidence about how Ms Robertson felt about the incidents as being relevant only to quantum.
The defendants submit that the fact that a CCU nurse was monitoring the patient demonstrates that Ms Robertson was not alone, even if the CCU nurse who noticed that the patient had died (Ms Brunton) was not in ward 9C at the time.[16] In fact, Ms Robertson gave evidence that if she needed the assistance of an RN, she need only call out.[17] It is not disputed that Ms Codd was on a break at the time that the patient died and she returned to find that that had occurred. There was no evidence about where the other RN on duty on the ward was at the time.
[16]Outline of defendants’ submissions, para 21.
[17]T4-13:28-42.
The patient was under the care of Ms Codd that night.[18] Ms Brunton was on duty in the adjacent CCU, from where the patient was being monitored. Ms Robertson gave evidence that she had assisted this patient to return from the toilet to her bed.[19] Having done that shortly before the patient died, Ms Robertson submits that she was looking after the relevant patient.[20] I accept Ms Robertson’s evidence that she assisted the patient shortly before the patient died, but it does not mean that Ms Robertson had responsibility for caring for the patient.
[18]T7-123:26-27.
[19]T2-33:17-21, 23-27.
[20]Plaintiff’s outline of submissions, paras 39 and 40. In fact, Ms Robertson suggests it was she who was caring for the patient “directly” before her death.
Ms Codd was then a relatively inexperienced nurse who had presumably never before experienced a patient under her care dying.[21] When she found out that one of her patients had died, she was distraught and questioned whether she was somehow responsible for the patient’s death.[22] Ms Brunton and the other nurse on duty comforted her and attempted to allay her concerns in that respect.
[21]Ms Robertson said she had not had that experience before either.
[22]T7-107:32-44; T7-122:32.
It is not surprising that the attention of the nurses present in the ward was directed toward comforting the young nurse who was responsible for the patient’s care during that shift, particularly given her inexperience and obvious distress. None of the nurses knew that Ms Robertson had recently assisted the patient and had, in fact, put her to bed. Had they thought about it, they may have thought that Ms Robertson was involved in the patient’s care indirectly, as a nurse on the ward, but apparently she did not display any obvious signs of distress that might have shown that she felt that she too needed some comforting. The other nurses were, in my view, justified in concentrating their efforts on comforting the young nurse who had not had such an experience before. There was no intentional exclusion of Ms Robertson in that process.
Following the patient’s death, Ms Robertson said she was stopped from telling the CTC[23] what had happened when Ms Codd told Ms Robertson to go on her break.[24] Ms Robertson said she was “mortified” about this, as she did not believe the RNs could accurately recount what had happened, as they had not been there, and she was not asked about what had happened to the patient.[25] The defendants submit there was no logical reason why Ms Codd would have prevented Ms Robertson from talking to the CTC, particularly given that Ms Codd had a rational explanation for not having been present at the time.[26]
[23]A Clinical Treatment Consultant was said to be a person who, on night shift, is effectively in charge of the hospital and responds to critical incidents: T2-11:1-3; T2-34:28-29.
[24]T2-34:36-37.
[25]T2-35:4-7; T2-35:36-41.
[26]Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions), p 2.
One issue raised by the evidence is whether Ms Harvey was in fact an RN on duty that evening. Ms Robertson said that the nurses on duty were Ms Codd and Ms Harvey. When the defendants’ counsel put to her that Ms Harvey did not work that shift, she said, “That’s what my mind tells me, she worked”. When Mr Morton put to her that a pool nurse called Dana worked the shift with Ms Codd, she denied that, saying, “No. … Definitely not.”[27] Ms Harvey and Ms Codd both said Ms Harvey was not on duty that evening. Both gave evidence that Ms Codd later rang Ms Harvey to tell her what had happened and to discuss it.[28] The hospital did not produce any shift records to prove who was or was not on duty that evening, nor was the nurse Dana called to give evidence, but Ms Anderson did not request that I infer that those records or the nurse’s evidence would not have assisted its defence. I draw no such inference.
[27]T4-14:9-18.
[28]T7-108:24-32; T7-142:37-38.
Ms Robertson’s diary note does not record who were the RNs on duty with her in ward 9C that night. Her diary note records that, when a Code Blue was called -
the other RNs appeared and just wrapped their arms about Sarah,[29] ‘oh you poor thing, are you alright Sarah’ ‘what a terrible thing for you.’ I just stood there & felt like I didn’t exist, like I wasn’t there. My heart was in my boots. I felt like I was excluded, not part of a team.
[29]Sarah Brunton. This is, of course, inconsistent with the other evidence that the person being comforted was Ms Codd.
The defendants submit that Ms Robertson did not know, or at least cannot accurately recall, which RN was working and therefore would not have known where that RN was at the time of the incident.[30] That seems to be supported by Ms Robertson’s diary entry, in which she wrote, “I was in 9C & not sure where the other 2 RNs were @ this time.”
[30]Outline of defendants’ submissions, para 18.
I accept the evidence of Ms Codd and Ms Harvey that Ms Harvey was not on duty that evening. Ms Robertson’s recollection that she was is mistaken. However, I also accept that, when Ms Codd returned she, Ms Brunton and other nurses were huddled together comforting Ms Codd, while Ms Robertson stood to the side. Nobody asked Ms Robertson whether she was alright, which should have occurred.[31] But nobody knew that she had had the last interaction with the deceased patient and, in the circumstances, it is not an oversight that could constitute bullying, badgering or mobbing of Ms Robertson.
[31]Mr Robert McPhee, the hospital’s clinical nurse educator for cardiology at the time, agreed, in his cross-examination, that he would expect comfort to have been offered to everyone present when a patient died on a ward: T6-138:24-29.
I accept that one of the nurses may have suggested that Ms Robertson go on her break, but I doubt that it was Ms Codd, given her distraught state. Nor do I accept that it was a deliberate tactic to prevent Ms Robertson telling her version of events or otherwise to exclude her. Rather, once things calmed down, one of the nurses probably thought it appropriate for Ms Robertson to take her break. Ms Robertson’s view is clouded by her feelings now toward her colleagues on the ward and the hospital generally.
Ms Robertson also seemed to say that her realisation, after the patient’s death, that she had been alone on the ward at the time made it harder for her to cope with the death.[32] She maintained that it was psychological abuse for the RNs on the shift to leave her alone on the ward.[33] I do not accept that she was left entirely alone. The fact that she assisted the patient to return from the toilet indicates that an RN may not have been on the floor of the ward itself, or may have been otherwise engaged at the nurses’ station or in the adjoining medication room, but the RNs would have discussed that Ms Codd would go on her break, so the other RN would have overall responsibility for the patients on the ward during Ms Codd’s break. It is possible that the other RN was talking to the nurses in the CCU, but that does not mean she was not generally aware of what was happening in the ward, nor does it mean that Ms Robertson was alone. The fact that the other RN and Ms Brunton from the CCU appeared very quickly when the patient’s monitor indicated that she had died indicates that the other RN on duty in ward 9C was close by.
[32]T3-78:4-5.
[33]T4-21:26-33.
Having regard to all the evidence about this incident, I find that:
(a)Ms Robertson was on ward 9C at the time the patient died and assisted the patient from the toilet to her bed shortly before the patient died;
(b)Ms Codd was on her break at the time;
(c)the other RN on duty was somewhere in the vicinity of the ward (perhaps at the nurses’ station or in the medication room);
(d)the other RN was not Ms Harvey;
(e)Ms Brunton saw, on the monitor for that patient (which was in the CCU), that she had apparently died, came through to check and found that she had, and someone called a Code Blue;[34]
(f)Ms Codd returned from her break to find that the Code Blue she had just heard concerned one of her patients and was very upset by it, having never before experienced one of her patients dying on her shift;
(g)Ms Brunton and the other nurse on duty comforted Ms Codd;
(h)after things had calmed down, one of the RNs suggested that Ms Robertson take her break;
(i)nobody deliberately excluded Ms Robertson although, understandably, she felt upset and somewhat excluded, but that was simply a circumstance that occurred when the nurses present concentrated on comforting the young nurse whose patient had died and in circumstances where nobody else knew that Ms Robertson had had the last interaction with the patient and might herself be upset;
(j)nevertheless, it was upsetting for Ms Robertson, as she felt some connection to the patient, and it was also upsetting to her that she felt excluded.
[34]A Code Blue is an alarm requiring urgent assistance from anyone available, as a patient is at risk of dying or has died. It is also referred to as a MET call (MET standing for medical emergency team).
I do not accept that the nurses present on this occasion deliberately excluded Ms Robertson. Therefore, I do not accept that it was an instance of bullying, badgering or mobbing her. Ms Robertson does not claim that this event alone (nor any one event) caused her injury, but rather it is one of many instances of bullying, badgering or mobbing her over the course of 2011 and 2012 that contributed to, and together caused, her injury.[35] But, as I have found that this event does not constitute bullying, badgering or mobbing in the circumstances, I shall exclude it as one of a number of events that together may constitute such behaviour.
[35]Plaintiff’s outline of submissions, para 41.
6 April 2011 – accusation of incompetence with insulin
Ms Robertson claims that, on 6 April 2011, she was abused and accused of incompetence by Ms Harvey.[36]
[36]Amended statement of claim, para 3(c).
Ms Robertson gave evidence to the effect that, while she was being assessed by Ms Harvey,[37] she drew up, in one syringe, 25 units of insulin for a patient who had been prescribed 24 units. She intended to disperse the extra unit but, before she could, Ms Harvey stopped her, asked what she was doing and said, “Do you need your eyes tested?” Ms Robertson said Ms Harvey asked if she was incompetent, before snatching the syringe from Ms Robertson’s hand and disposing of it.[38]
[37]Ms Harvey was then acting as a nurse educator, supervising and assessing Ms Robertson’s performance as an EEN.
[38]T2-37:11-17, 37-47.
Ms Robertson said she was too shaken to respond to Ms Harvey and felt uneasy and frightened.[39] She said she did not discuss this incident with anyone.[40] She said the incident made her feel “shattered” and that she had no one she could talk to for support.[41]
[39]T2-38:29-32.
[40]T2-40:13-14.
[41]T3-79:21-26.
The defendants submit that an inference should be drawn, from the fact that Ms Robertson did not discuss the incident with Linda Fraser in a meeting shortly after it allegedly occurred, that Ms Harvey did not behave in this way.[42] Ms Harvey denied snatching the syringe and calling Ms Robertson incompetent.[43] Ms Harvey’s evidence was that she would have suggested Ms Robertson have her vision checked, as it was important that she be able to dispense and to check medications.[44]
[42]Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 3.
[43]T7-149:27-39; T7-159:13-20.
[44]T7-149:34-43.
Ms Robertson made a note that appears to relate to this incident, in her diary on 6 April 2011.[45] She first recorded she was on the afternoon shift that day, Ms Harvey was her educator for the shift and, at the end of the shift, Ms Harvey told her that she had done well. She went on to record that two types of insulin had to be given, with a total of 24 units. Ms Harvey told her to draw them up in one syringe.
[45]Part of exhibit 16.
The diary note continued:
I need 24U – I drew 25U. So the 25U was thrown out & Alisha drew up the 24U. Alisha said ‘Do you need your eyes tested.’ Me ‘I’ve had them tested.’ Alisha ‘Maybe your incompident.’
Ms Harvey did not make a file note of the incident. However, on 5 April 2011 she reported to the Nurse Unit Manager (NUM), Linda Fraser, that the previous evening she had worked with Ms Robertson who, among other things,
did not know how to read an insulin chart, did not know how to give the insulin correctly. Drew up the wrong amount (double the amount).[46]
[46]Exhibit 2, tab 2A, a note by Ms Fraser dated 5 April 2011 at 8.45am, recording a telephone call from Ms Harvey. The note also records a number of other concerns about different asserted deficiencies in Ms Robertson’s knowledge of relevant matters.
Ms Fraser went on to record that Ms Harvey had also told her that Ms Robertson did not know how to administer the drug Clexane and had demonstrated other serious misunderstandings of relatively standard procedures.
The hospital submitted that the incident about which Ms Robertson complains must have occurred before 5 April, rather than on 6 April, and that Ms Harvey’s record of the event, as recorded by Ms Fraser, was more likely correct than Ms Robertson’s diary note and recollection. Given the significant amount of time that has passed since this incident, the defendants submit that Ms Fraser’s file note should be considered reliable evidence of what occurred.[47] Furthermore, the defendants submit that Ms Harvey had genuine and reasonable concerns as to Ms Robertson’s ability to administer correct dosages of medications, as Ms Fraser’s file note records that Ms Harvey also relayed to her that Ms Robertson had drawn up an incorrect amount of the drug Clexane (a blood thinner).[48]
[47]Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 3.
[48]Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 4.
I am satisfied that, on at least one occasion, Ms Harvey asked Ms Robertson if she needed glasses, or said that she needed to get her eyes checked, after Ms Robertson had drawn up an incorrect amount of a medicine. Whether that medicine was insulin or Clexane (or indeed, both) does not assist in determining whether or when the incident occurred as alleged. Indeed, given the dates of the two notes and that Ms Fraser’s note records other concerns relayed by Ms Harvey, not just insulin, I consider there to be a real possibility that two incidents occurred. First, on the night of 4 to 5 April, the incidents recorded by Ms Fraser and then, on the afternoon shift on 6 April, the incident recorded by Ms Robertson. It would not be surprising if, having been concerned enough about Ms Robertson’s competence to administer insulin and Clexane on the night before to have reported her concerns to Ms Fraser on 5 April, when she was supervising Ms Robertson on 6 April Ms Harvey might have become concerned that Ms Robertson had again drawn up an incorrect amount of insulin. Also, as it was a combined dose of two types of insulin, having drawn up too much (even if only one unit in total), it is logical that one could not just dispense with one unit of the combined medicines, as there might still be incorrect amounts of either or both medicines.
During cross-examination of Ms Harvey, Ms Anderson suggested that the hospital required that both insulin and Clexane be checked by two nurses before being given to the patient, to ensure that the dosage was correct.[49] It appears that Ms Anderson’s proposition was that it should not matter if Ms Robertson had made a mistake, as another nurse would identify that mistake. The defendants submit that this ignores the fact that another nurse may also make a mistake and the whole purpose of requiring that a second nurse check medicine is to ensure that a correct amount is given. If the checking nurse had poor eyesight, it was open to her or him not to notice that the nurse drawing up the medicine had made a mistake. It was therefore essential that all nurses have sufficiently good eyesight to see the gradations on syringes and medicine bottles clearly.[50] There was evidence that the gradations on Clexane and other medicine bottles were small and on some insulin bottles even smaller. I agree with the defendants’ submission. If Ms Robertson was unable to see sufficiently well both to draw up and to check the correct dosages, this would undermine the system of double-checking and put patients at risk.
[49]T7-160:25 to T7-161:33.
[50]Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 4.
I find that there were two incidents and that, on 6 April, Ms Harvey did say to Ms Robertson that she either needed her eyes checked or she was incompetent. Ms Harvey struck me, when giving evidence, as a forthright person who would not hesitate to express her views about (and to) others whom she considered to be incompetent. By 5 April 2011, she already had concerns about Ms Robertson’s competence with medicines and, on 6 April, she became frustrated or angered that Ms Robertson again (to her mind) demonstrated an incorrect understanding of how to deal with medicines. Ms Harvey did not snatch the syringe away from Ms Robertson, as Ms Robertson alleged and said in her evidence, but she did take it and dispose of it and then herself draw up the correct amount. (Ms Robertson’s evidence of “snatching” is her overly sensitive later interpretation of the event; she did not record it that way in her diary.) These incidents led Ms Harvey to form the genuine view that, in the absence of any difficulties with her eyesight (which Ms Robertson had denied), Ms Robertson was not sufficiently competent to administer medicines. Ms Fraser had been sufficiently concerned, after receiving the phone call from Ms Harvey the previous day, to appoint Ms Harvey to educate Ms Robertson. That led to Ms Harvey supervising Ms Robertson on the day shift on 6 April and then to a meeting between Ms Fraser and Ms Robertson on 7 April 2011.
I do not consider that Ms Harvey made up the events, nor that she did not genuinely hold the concerns, that she relayed to Ms Fraser. As she held those concerns, it was entirely proper for her to report them to Ms Fraser, in the interests of patient safety and proper management of the hospital’s professional staff. Therefore it was not mobbing or otherwise improper for Ms Harvey to report to Ms Fraser the events as she recalled them and her concerns.
Ms Harvey was justified in taking away the insulin syringe when Ms Robertson drew up too much in total. She was justified in asking Ms Robertson if she needed her eyes checked. However, it was not appropriate that she put to Ms Robertson that, if her eyesight was alright, then maybe she was incompetent. It seems that, by that time, Ms Harvey had real concerns about Ms Robertson’s competence, but it was still not appropriate for her to say such a thing to Ms Robertson.
To make such an assertion to Ms Robertson could amount to bullying or badgering her. However, it is appropriate to consider it in the context of the other events about which Ms Robertson complains in order to determine whether, together, they demonstrate a pattern of such behaviour by Ms Harvey and others. I shall reconsider the event in that context later.
7 April 2011 – plans to retire
Ms Robertson claims that, on 5 April 2011, during a yearly performance improvement plan meeting, NUM Linda Fraser told her that people had been complaining about her, asked her when she expected to retire and accused her of having insufficient knowledge of medications.[51]
[51]Amended statement of claim, para 3(b).
There was initially some confusion about the date of this meeting, however I find that it actually occurred on 7 April 2011, as Ms Anderson conceded during the trial[52] and in her written submissions.[53]
[52]T2-61:1-26.
[53]Plaintiff’s outline of submissions, para 45.
Ms Robertson gave evidence that, at a professional improvement plan meeting with Ms Fraser, Ms Fraser said, “They come and tell me everything, Maureen. They tell me everything,” but did not elaborate as to what she had been told.[54] Ms Robertson said that Ms Fraser also asked when she expected to retire.[55] Ms Robertson said Ms Fraser also discussed upskilling and further education, in which Ms Robertson was happy to participate.[56]
[54]T2-40:16-18, 34-36.
[55]T3-81:26. Ms Robertson did not mention this statement when she first gave evidence about this incident, on the previous day, but only when reminded about it.
[56]T2-40:37-43.
The meeting is recorded, in a fashion, in a performance appraisal and development plan completed by Ms Fraser and acknowledged and apparently agreed to by Ms Robertson.[57] In her evidence, Ms Fraser[58] said that she did not recall the meeting, although she had completed the plan.[59]
[57]Exhibit 2, tab 2B; T2:41:28-38.
[58]At the time she gave evidence, Ms Fraser had been a nurse for 47 years: T7-133:35.
[59]T7-135:5-8.
Ms Robertson said that the content of Ms Fraser’s note of her conversation with Ms Harvey on 5 April was not discussed and, in particular, she was not told that Ms Harvey thought it would be unsafe for her to administer medications.[60] I accept that it was likely that Ms Fraser did not mention Ms Harvey’s name, as it is unlikely that a NUM such as Ms Fraser would identify the person or persons with whom Ms Robertson worked and who had expressed concerns about Ms Robertson’s performance.
[60]T2-45:6-7, 41-44.
Ms Robertson said that, during the meeting, while Ms Fraser took her through the performance appraisal and development plan, she did not raise any concerns about Ms Robertson’s performance.[61] I find that evidence entirely implausible and I reject it. Ms Fraser had received the telephone call from Ms Harvey two days before the meeting, in which Ms Harvey had outlined serious concerns she had with Ms Robertson’s performance and the reasons for them.[62] Ms Fraser noted in the plan that Ms Robertson met some requirements of her position, but not all, and noted, “Maureen requires some further education with medication awareness, rhythm interpretation and general clinical skills.” That note clearly stems from her conversation with Ms Harvey. Each of those concerns was specifically addressed in the plan by providing for Ms Robertson to undergo further education and to work under supervision. Furthermore, as Ms Fraser said in her evidence, “If that was what I’d planned there must have been recognised gaps there” (that is, in Ms Robertson’s performance).[63] She said that it was her practice to discuss with the staff member concerned why the matters in the plan were recorded there.[64] Finally, in Ms Robertson’s own diary note of the meeting, she recorded that Ms Fraser had told her that her knowledge of medication was not good enough. She wrote, “I know this …”.[65]
[61]T2-43:22-24, 35.
[62]Ex 2, tab 2A.
[63]T7-135:28-29.
[64]T7-137:6-7. There is no reason to believe that she did not follow that practice on this occasion.
[65]Exhibit 16. Although written on the page for 5 April 2011, Ms Robertson has crossed out that date and inserted, “Thursday 7-4-11”. It is not clear, however, that the note was written contemporaneously and some was written in a different pen, but no point was made of this. In fact, the note was not originally tendered, but has been tendered only as part of the whole diary. Ms Robertson was not asked about the note.
Ms Fraser did not remember saying the things about which Ms Robertson complains.[66] She did not think she would have asked Ms Robertson when she planned to retire, although she would have asked her whether she enjoyed working in the cardiology unit. Indeed, under the heading “career aspirations” she recorded that Ms Robertson was “happy in cardiology – aim is to keep current.” Ms Robertson recorded, in her diary, that Ms Fraser talked about how Ms Robertson had been sick and had an operation the previous year, but she was now well.
[66]T7-136:28-46.
I find that, during this meeting, Ms Fraser explained to Ms Robertson how she had come to know about her performance, by saying that people came to her with concerns or complaints about anyone. I also find that, in the context of discussing Ms Robertson’s past illness and her career aspirations, Ms Fraser did ask when Ms Robertson thought she might retire. (In this respect, even Ms Robertson’s note linked the question whether she liked working in the cardiology unit with the question when she intended to retire.) But I do not consider that question, nor the conversation as a whole, to amount to bullying, badgering or mobbing of Ms Robertson. It was appropriate to link those two questions in the context of discussing her past illness, her job satisfaction and her career aspirations. Ms Robertson’s note is selective in recording the conversation and, in my view, she has taken the comments out of context in deciding that they are worthy of complaint. It was also appropriate to raise doubts about the adequacy of Ms Robertson’s knowledge of medications, particularly in the context of a performance appraisal and formulating a career development plan.
Ms Robertson said she felt uneasy after this meeting, as she thought her colleagues were gossiping about her.[67] That may have been her reaction at the time but, if so, it was unusual and unjustified given that, although some nurses had clearly told Ms Fraser about their concerns about Ms Robertson’s performance, that would not ordinarily be by way of gossip but out of a duty in all nurses to ensure the safety of the hospital’s patients. Indeed, Ms Fraser appears to have tried to reassure her by explaining how she came to find out about other nurses’ concerns – it was her duty and responsibility to be told about concerns and complaints, so she could deal with them as she considered appropriate. This was part of a normal process. In this case, it led to the hospital looking to assist Ms Robertson in her aspirations to “keep current” and to improve her skills. It was not bullying, badgering or mobbing, as she now contends.
[67]T3-81:20.
19 May 2011 – “just the changes”
Ms Robertson claims that, on 19 May 2011, she was “prevented from giving a full handover of staff”.[68] She claims that, after a nightshift, RN Lee Bagnall did not allow her to give a full handover presentation, cutting her off by stating, “Just the changes”. Ms Robertson pleads that that conduct negated her existence on the shift and took away any credibility of the information she had to pass on.[69]
[68]Amended statement of claim, para 3(f).
[69]Particulars of paragraph 3 of the statement of claim, at 19/5/2011.
In her evidence Ms Robertson said that, on 19 May 2011, as she was giving the morning handover to at least six nurses, Ms Bagnall yelled out, “Only the updates, Maureen. Only the updates.”[70] Ms Robertson said she was quite taken aback, as it was her job to give a full handover and Ms Bagnall was stopping her from doing so.[71] The normal process, she said, was that the nurses coming on duty listen to what you have to say about your patients.[72]
[70]T2-71:6-8, 23-25.
[71]T2-71:27-31.
[72]T2-71:44-45.
Ms Robertson said the incident was demoralising, humiliating and made her feel terrible.[73]
[73]T3-82: 42; T3-83:14-16.
In her cross-examination, Mr Morton put to Ms Robertson that it was common that a nurse who had worked an afternoon shift one day (finishing at about 9.00pm) would work the morning shift the next day (starting at about 7.00am). Ms Robertson agreed with that proposition but denied that, at a handover to a morning shift involving a nurse in that situation, the nurse might ask for a handover involving only the changes since the previous evening.[74] When asked how it would be bullying, harassment or mobbing for such a nurse to ask to hear only the changes, she said it was probably in the manner she said it and also it was not the only time.[75]
[74]T4-36:17 to T4-37:30.
[75]T4-37:35-36.
Ms Robertson’s only note of the incident in her diary for the day was, “when I gave hand over, Lee Bagnall just the changes Maureen. So I give just the changes.”[76] Ms Anderson did not point me to any other entries in which a similar event was recorded.
[76]Exhibit 16, at 19 May 2011.
Ms Bagnall was unable to be called to give evidence, due to a medical condition.[77]
[77]Exhibit 21.
I accept that Ms Bagnall asked Ms Robertson only to give her an update, or just the changes (from the previous evening), about the patients. I am not satisfied that Ms Bagnall asked for just the changes in a tone that was demeaning or belittling of Ms Robertson. I infer that Ms Bagnall had been on duty the previous evening and therefore did not consider that she needed to be told everything about the patients who had been on the ward that evening. Although Ms Robertson considered that it was her duty to give a full handover of her patients at every change of shift, I see nothing wrong in an experienced nurse, coming onto a morning shift after having worked on the ward until only 10 hours or so earlier, asking that a handover of patients for whom she was to be responsible on her shift, be limited to the changes or an update. It does not constitute badgering or bullying. Although I have found that there was nothing belittling or demeaning in Ms Bagnall’s tone, it would not be surprising that if (as Ms Robertson said in her cross-examination, although it has not been pleaded) Ms Bagnall had asked only for the changes on numerous earlier occasions, she may have sounded irritated in the face of a full handover, when Ms Robertson must have known that Ms Bagnall consistently only wanted to know about changes to her patients since her last, very recent, shift.
Ms Bagnall’s conduct was not bullying, badgering or mobbing of Ms Robertson.
11 August 2011 – infusion pump and alleged abuse about observations
Ms Robertson claims that, on 11 August 2011, she was abused and threatened by RN Fiona Naylor.[78] The particulars of the allegation allege that a number of events took place earlier in the shift and in the lead up to the particular incident.
[78]Amended statement of claim, para 3(g).
The lead-up events
Ms Robertson gave evidence about the earlier events, as well as about the incident itself. The RNs on the shift that night – Amanda Daly and Fiona Naylor[79] – also gave evidence about those events that was, in some respects, completely at odds with that of Ms Robertson. Those events are not directly relevant to the incident on that shift about which Ms Robertson complains, but they become relevant to later incidents, in which Ms Robertson alleges Ms Naylor harked back to events that occurred on this shift. It is therefore convenient to record the evidence about them at this juncture. However, it is not necessary for me to decide between the conflicting evidence and to find what actually happened.
[79]Ms Naylor was not then the NUM.
Ms Robertson recalled that, some time into the shift, while Ms Daly was on the ward with her but Ms Naylor had not yet started, she heard an infusion pump alarm which indicated that the pump had stopped.[80] She said that, as an EEN, she was permitted to stop the alarm from sounding before telling an RN that there was an issue.[81] Ms Robertson stopped the pump alarm and told Ms Daly but, she said, Ms Daly did nothing to acknowledge that she had heard her. Ms Robertson then moved on and attended to other tasks.[82]
[80]T2-72:23-29.
[81]T2-72:33-44; T2-73:1-2.
[82]T2-73:7-24.
Ms Robertson said that some time later, at about 11.00pm, which was after Ms Naylor had started her shift, she heard the alarm sound again, so she turned off the alarm and told Ms Daly and Ms Naylor about the issue. Again, Ms Robertson said she then went and did other duties.[83]
[83]T2-76:20-35.
Ms Robertson said that, at about 1.00am, Ms Naylor came to realise that the pump was not working.[84]
[84]T2-76:36-39; T2-77:18-28.
Ms Daly’s evidence was diametrically opposed to that of Ms Robertson. She said she heard an infusion pump alarm, but it stopped while Ms Robertson was in the patient’s bay. Ms Daly went to check it and found that it had been paused, so she restarted it. She said she spoke to Fiona Naylor about it when she came on shift, because it was out of Ms Robertson’s scope of practice to pause an infusion pump.[85] Ms Daly said she did not recall Ms Robertson telling her, or telling her and Ms Naylor, that an infusion pump had alarmed.[86] She said that there was no fluid on the floor when she restarted the pump.[87]
[85]T6-29:24 to T6-30:4.
[86]T6-46:23-24; T6-47:23-25.
[87]T6-49:28-29.
Ms Naylor’s evidence was also inconsistent with that of Ms Robertson. She said that she found that the infusion pump had stopped and, as a consequence, there was fluid on the floor. She had no recollection of Ms Robertson telling her and Ms Daly that an infusion pump alarm had sounded. When she discovered that the pump had stopped, she put in a new line. [88]
[88]T8-37:22-31; T8-85:14-15; T8-87:15-20.
As I have said, I do not need to reconcile the differences in these respective recollections of the events concerning an infusion pump. They are simply background to later evidence about whether it was raised at later meetings.
The particular alleged conduct
I turn now to the particular complaint made by Ms Robertson about Ms Naylor’s behaviour on this shift. Whether or not the earlier events happened as Ms Robertson related them, by the time of the incident Ms Robertson appears to have been frustrated, at the least, with what she saw as the two RNs having spent the evening gossiping. [89] Nevertheless, she attempted simply to get on with her job of carrying out the duties of an EEN.
[89]T2-77:36-37; T2-78:36-38.
Ms Robertson said that, shortly before 2.00am, Ms Daly asked her if she would do Ms Daly’s 2.00am patient observations. Ms Robertson got up to get the necessary equipment to do that, when Ms Naylor asked if Ms Robertson would do her observations too. Ms Robertson turned to Ms Naylor and responded, “Can’t you do your own?” In response, Ms Naylor flung herself out of her chair, threw her hands on her hips and said, “How dare you speak to me like that? I am your superior. You will respect me. I’m going to take this to Linda.[90] Better still, I’m going to take this to Jed Williams,”[91] to which Ms Robertson responded, “Let’s go then.” Ms Robertson then carried on to do both Ms Daly’s and Ms Naylor’s observations.[92]
[90]Being Linda Fraser, the NUM at the time: T2-78:13-16.
[91]Professor Jed Williams was described by Ms Robertson as the person who ran, or was in charge of, the hospital: T2-78:18-19; T4-43:40-41.
[92]T2-77:47 to T2-78:11.
Ms Daly’s evidence about the incident was that she and Ms Naylor were discussing patient care plans while Ms Robertson was sitting at another computer at the nurses’ station. Ms Naylor turned around to Ms Robertson and asked her to do the observations in the men’s bay for the RNs. Ms Robertson said, “No, why don’t you?” Ms Naylor said, “Excuse me, what did you say?” and then Ms Robertson went to do the observations. Ms Daly said that, after Ms Robertson had completed the observations, Ms Naylor asked her to go to the medication room. Ms Daly overheard a conversation between them in which Ms Naylor asked Ms Robertson why she had spoken to her in such a manner and Ms Robertson said she did not see the reason why she had to do the observations when the RNs were there and that was why she had spoken to her like that. Ms Daly said that the tone was harsh from both women; they both appeared to be upset with each other.[93] She did not recall hearing Ms Naylor suggest that the matter be taken up with the NUM or Professor Williams.[94]
[93]T4-28:32-35; T6-29:5-17; T6-30:6-26; T6-49:4-5. At the beginning of her examination in chief, Ms Daly was asked about an event on 4 November 2011 (T6-28:30), but her evidence clearly concerned the event that is alleged to have taken place in August that year.
[94]T6-48:25-29.
Ms Naylor said that she and Ms Daly were sitting together reviewing patient notes, when she asked Ms Robertson to do the patient observations. Ms Robertson responded by asking her to do her own observations. Ms Naylor could recall being shocked at the tone in which Ms Robertson spoke to her, but she could not recall getting out of her chair. She denied saying, “I’m your superior and you will respect me.” She recalled having a conversation with Ms Robertson later, but she could not recall what was said. She did not recall saying that she would take it up with Ms Fraser or Professor Williams and she could not recall being angry.[95]
[95]T8-31:6 to T8-32:19; in cross-examination, T8-87:25 to T8-88:41.
In her examination in chief, Ms Robertson said she did not feel that she spoke to Ms Naylor inappropriately.[96] In her cross-examination, she agreed that it was not unusual for an RN to ask an EEN to do patient observations.[97] She disagreed that her response was insubordinate or rude[98] and she agreed that it would not be surprising that, if an EEN spoke to the senior clinical nurse on the ward in that manner, it might cause some friction, as it did on this occasion.[99] In re-examination, she said she did not think it was rude because she had to stand up for herself, as the RNs had been chatting all night while Ms Robertson had not had a break.[100]
[96]T2-78:40.
[97]T4-42:10-15, 26.
[98]T4-42:34-42; T4-43:5-15.
[99]T4-44:8-12.
[100]T5-72:45 to T5-73:10.
As well, Dr Sadasivan refers to the first AHPRA complaint and requirements and Dr Larder refers to the effect of the second AHPRA complaint. They appear to be factors that each doctor considered to have exacerbated Ms Robertson’s then pre-existing illness.
In their conversations in March 2020, each doctor was asked about, but excluded as a cause of Ms Robertson’s depression, some other matters that had occurred in Ms Robertson’s personal life.
I am satisfied, on the basis of each doctor’s evidence, that Ms Robertson’s illness was caused by stressors she experienced in her work at the hospital. Those stressors arose from the deterioration of her relationships with other nursing staff and the re-education process that she underwent, principally in 2012. However, I have found that none of the events that the doctors say contributed to her illness constituted bullying.
Furthermore, neither doctor was asked whether, if the hospital had taken the particular steps that Ms Robertson alleges it ought to have taken in order not to breach its duty, or if it had not taken the steps that Ms Robertson alleges were in breach of its duty to her, her illness would not have occurred. In the absence of that evidence, it is not possible to conclude that, if the hospital had taken the steps that Ms Robertson alleges it should have taken, she would not have suffered the illness.
In these circumstances, Ms Robertson has not satisfied me that her illness was caused by the hospital’s alleged breaches of its alleged duty, rather than by the stresses she underwent at work that were not themselves breaches of duty.
In any event, of the particular incidents mentioned by the doctors as having caused the illness, two (the infusion pump and the February performance improvement plan meeting, or the performance improvement plan process generally) are not subjects of complaint by Ms Robertson and neither they nor the others constituted bullying. The AHPRA complaints and Ms Robertson’s difficulties in fulfilling AHPRA’s requirements cannot be taken into account as grounds for liability, as a person who, in good faith, makes a referral to AHPRA is protected by statute from any liability.[337]
[337]Health Practitioner Regulation National Law (Queensland), s 237. Ms Robertson does not allege that either referral to AHPRA was made other than in good faith.
Therefore, Ms Robertson’s illness was not caused by any breach of duty by the defendants.
Damages
Notwithstanding my conclusions on liability, it is necessary for me to assess what damages would be payable if Ms Robertson had proved her case. Unfortunately, many of the amounts claimed by her are disputed by the defendants, so it is necessary to consider each item claimed.
General damages
The amount of general damages for pain and suffering must be determined pursuant to ss 306O and 306P of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and ss 129 and 130 and schedules 9 to 11 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). That amount is dependent on the extent of permanent impairment that Ms Robertson has suffered as a result of her illness.
In his first report, Dr Larder opined that Ms Robertson’s impairment on the scale provided in schedule 11 of the Regulation (PIRS rating) was 11%. Ms Robertson relies on that opinion to claim general damages of $22,950, on the basis that a PIRS rating of 11% indicates a very severe psychological condition under item 11 of schedule 9, resulting in an appropriate injury scale value (ISV) under schedule 9 of 15%. On the apparent basis that the injury was sustained on or between 1 July 2012 and 30 June 2013, under table 3 of schedule 12 general damages therefore amount to $22,950.
The defendants rely on Dr Larder’s second report, in which he determined a PIRS rating of 5%. That equates to a moderate mental disorder resulting in an ISV, under item 12 of schedule 9, of 2 to 10. The defendants submit that an ISV of 4 is appropriate. On the assumption that the injury was suffered in the year to 30 June 2014, that results in general damages of $5,440, determined under table 4 of schedule 12.
Ms Anderson submitted that, notwithstanding Dr Larder’s later assessment, Ms Robertson was not obliged to obtain a second report from him and therefore I can still have regard to his first report in determining the appropriate PIRS rating. If I am not satisfied that I should adopt that rating, it is open to me to determine a rating between the two assessments.
I do not accept Ms Anderson’s submission in this respect. The most up to date evidence is that Ms Robertson has an illness on which an appropriate PIRS rating is 5%. The up to date information concerns her position as at the trial. Ms Robertson’s disorder has now reduced from serious to moderate. As there is no challenge to Dr Larder’s calculation of that rating, I will adopt that rating.
In Dr Sadasivan’s first letter, she stated that Ms Robertson had mild to moderate depression in February 2013. In her second letter she opined that the illness had developed into a major depressive disorder by, apparently, some time in late 2013. I consider that the latter date is when the relevant injury was sustained. Therefore, the appropriate table in schedule 12 is table 4.
At a PIRS rating of 5%, Ms Robertson’s illness is toward the lower end of the ISV scale in item 12 of schedule 9. The lowest value on that scale is 2. I consider that, in Ms Robertson’s circumstances, the appropriate value on that scale is 5. Therefore, under schedule 12, table 4, I assess general damages at $6,550.
Special damages
In an amended schedule of damages provided by Ms Anderson after the last day of the trial, Ms Robertson claimed special damages for out of pocket expenses of $12,114.10 for medications, doctors’ fees and travelling expenses. They are supported by the evidence and are not disputed. In addition, WorkCover paid $10,143.12 for medical expenses, which Ms Robertson will have to refund.
Therefore total special damages are $22,757 (ignoring the cents).
The defendants have submitted that I should award interest on Ms Robertson’s out of pocket expenses. Calculated at 0.34%,[338] over 7 years this amounts to $288.
[338]Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305N: one half of the 10 year bond rate at the end of the last quarter, which was 0.68%.
Past economic loss
Ms Robertson was due to return to work at the hospital on 7 January 2013. She did not, claiming that she was sick. She obtained a medical certificate on 9 January 2013 stating that she was unable to work. Ultimately she obtained a workers’ compensation medical certificate stating that she had been unable to work from 8 January 2013.[339] I shall adopt that as the date she stopped work.
[339]Exhibit 2, tab 4, sub-tab 4a. The defendants submitted that the appropriate date was 9 January, based on the first medical certificate.
Ms Robertson claims past loss of income since about then at the rate of $900 per week. The defendants submit that her net income in the year to 30 June 2012 was $833.74 per week.
The defendants submit that Ms Robertson is only entitled to past loss of income until the date that she was no longer able to practise unless she complied with AHPRA’s requirements, namely 15 May 2013, resulting in a past loss of income for only 17.71 weeks. I do not accept that submission. Although, after giving her undertakings to AHPRA, Ms Robertson never fulfilled them and therefore she could not have worked as a nurse unless and until she fulfilled them, Dr Sadasivan’s and Dr Larder’s evidence is that she was not able to fulfil the requirements because of her illness. If that illness had been caused by the defendants’ breaches of a duty of care owed to her, then her inability to fulfil the requirements would have been caused by that illness and therefore by the breaches. The two doctors opine that she will never work again in that field (if at all).
Therefore, I should calculate Ms Robertson’s past loss of income from 8 January 2013 to the date of this judgment. As to the weekly rate, it is arguable that, if Ms Robertson had not become depressed, she might have returned to working night shifts, with a consequent increase in her income over that achieved in the 2012 financial year (which was less than in 2011). Ms Anderson did not say how she came to claim $900 per week, but I assume she took into account that possibility and the possibility of pay increases since then. However, Ms Robertson was not assessed as having an illness until early 2013 and throughout most of 2012 she was required to work mostly on day shifts. I consider her 2012 income to be an appropriate starting point, but allowing something for likely increases in pay scales since then.
Based on her 2012 PAYG payment summary, her net income in that financial year was $42,464, equating to $812.15 per week.[340] Allowing for possible higher earning capacity on night shifts and increases in pay scales, I consider that an appropriate rate is $850 per week. Over 395 weeks to 3 August 2020, that amounts to $335,750. Ms Anderson submitted that I should deduct from that sum payments totalling $46,733 that the defendants made to her after workers’ compensation payments ceased in October 2014. There is no evidence of what period that covered but, based on her earnings of $812.15 per week, that appears to equate to about one year of income. Deducting that sum results in past loss of income of $289,017.
[340]Exhibit 3, tab 14, p 44. My calculation of the weekly income allows for the leap year.
Ms Robertson received a total of $85,540.63 (gross) from WorkCover, which should be deducted from the damages awarded for past loss of income.[341]
[341]Exhibit 3, tab 13. That sum includes tax, which would otherwise be added in accordance with Fox v Wood (1981) 148 CLR 438.
Ms Robertson does not claim interest on past lost income, so I will not allow for it.
Past loss of superannuation, calculated at 9% of net income lost, is $26,011.
Future loss of earning capacity
Ms Robertson claims four years’ loss of earning capacity, apparently on the basis that she would have retired when she turned 70 years old.[342]
[342]She was born on 8 June 1954.
The defendants submit that she should not be awarded any damages for loss of future earnings due to her not fulfilling AHPRA’s requirements. I have already found that her lost earning capacity, including her inability to fulfil those requirements, was due to her illness. Therefore, I reject this submission. Furthermore, Dr Larder expressed the opinion (which I accept) that she is not fit to work in her position as an EEN nor for the hours of work that she held and performed with the defendants. As I have said, Dr Sadasivan said that she is not commercially employable. Therefore, I accept the Ms Robertson is unlikely to be capable of undertaking paid work in the future.
The real issue is when Ms Robertson was likely to retire if she had continued to work as an EEN. Ms Robertson said she enjoyed her job (apart from the issues the subject of this proceeding). She was asked in her evidence when she planned to retire. She said she had no particular plan in mind as at 2012. She might have cut down a day, but she had not contemplated retirement. She just presumed she would feel how she was in her sixties.[343] The defendants did not challenge this evidence in cross-examination.
[343]T4-4 to T4-5.
There was no other evidence of any other possible illness or reason that might have prevented her working until 70 years of age. I did not understand her work to involve a great deal of physical difficulty. Having regard to these matters and her evidence, I will allow the claim on the basis that she would have retired at that age. I will allow her future loss, but I will allow for contingencies by calculating it at the same weekly rate as her past loss and applying a discount of 10%.
Three years and 10 months (say 200 weeks) at $850 per week amounts to $170,000. The present value of that sum, using the discount rate of 5%,[344] is $154,700. Discounting by 10% for contingencies results in damages for future loss of $139,230.
[344]Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 306L.
Ms Robertson claims loss of future superannuation at 9.5%, which the defendants did not dispute and I would allow. That amount is $13,227.
Future medical expenses
Ms Robertson claims a global amount of $5,000 for future medical expenses. The defendants did not concede any amount on that item. I understand that she continues to require medication for her depression and she continues to see Dr Sadasivan about once every six weeks. Having regard to these matters and her past expenses, which appear to be ongoing, the sum claimed seems reasonable and I would allow it.
Total nominal damages
Therefore, if I had given judgment for Ms Robertson, I would have awarded the following damages:
(a)
General damages
$6,550.00
(b)
Special damages
$22,757.22
(c)
Interest on special damages
$288.00
(d)
Past economic loss
$289,017.00
(e)
Loss of past superannuation
$26,011.00
(f)
Future economic loss (present value)
$139,230.00
(g)
Future loss of superannuation
$13,227.00
(h)
Future medical expenses
$5,000.00
Subtotal
$502,080.22
Less WorkCover receipts
$85,540.00
Total
$416,540.22
Conclusions
I have found that:
(a)Ms Robertson was not bullied, badgered or mobbed except, perhaps, having been bullied on two occasions, well separated in time and circumstances;
(b)the defendants owed no duty of care to Ms Robertson to protect her from psychiatric injury;
(c)even if the defendants did owe Ms Robertson such a duty, they have not breached it;
(d)even if the defendants owed and breached such a duty, Ms Robertson has not satisfied her onus of proving that the breach caused her illness.
Consequently, Ms Robertson has failed to prove her claim and I shall give judgment for the defendants.