Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland - [2006] NSWSC 593

No judgment structure available for this case.

CITATION: Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland [2006] NSWSC 593

HEARING DATE(S): 19/10/2005 - 21/10/2005, 24/10/2005, 26/10/2005 - 27/10/2005, 31/10/2005 - 01/11/2005.

JUDGMENT DATE :
19 June 2006

JUDGMENT OF: Hislop J

DECISION: 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant’s costs.

CATCHWORDS: Negligence - Hospital - Psychiatric patient - Alleged negligence by triage nurse - No breach of duty - No causative link established.

LEGISLATION CITED: Mental Health Act (NSW)
Mental Health Act (Qld) - ss 18, 26

CASES CITED: Holloway v McFeeters (1956) 94 CLR 470
Hunter Area Health Service v Presland (2005) 63 NSWLR 22

PARTIES: Plaintiff - Brendan Richard Warner by his tutor the Protective Commissioner
Defendant - State of Queensland

FILE NUMBER(S): SC 20879/01

COUNSEL: Plaintiff - Mr M. Williams SC with Mr A. Casselden
Defendant - Mr J.L. Glissan QC with Ms S.A. Gallagher

SOLICITORS: Plaintiff - Maurice Blackburn Cashman Lawyers
Defendant - Tress Cox Lawyers

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

19 June 2006

20879/01 Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland

JUDGMENT

Introduction

1 The plaintiff, was born on 14 April 1970. He suffers from schizophrenia. Shortly after 7am on 6 November 1998 he attended Cairns Base Hospital. There he was seen by a triage nurse. The nurse was informed that the plaintiff suffered from schizophrenia and had not been taking his medication. The nurse asked the plaintiff to wait to be seen by a doctor. The plaintiff left the hospital before seeing the doctor. He did not inform staff he was leaving.

2 At approximately 5.30pm on 7 November 1998 the plaintiff was observed lying unconscious on the pavement outside the Brisbane Transit Centre in Roma Street, Brisbane. He was suffering from severe facial and orthopaedic injuries.

3 The plaintiff has sought damages in these proceedings from the State of Queensland (“the defendant”) in respect of those injuries. He alleges the injuries were occasioned when he jumped from the third level of the Transit Centre, either in a suicide attempt or in attempting to avoid an execution squad which, in his delusional state, he believed was trying to kill him. He alleges he would not have sustained those injuries had he been afforded proper care and treatment at the hospital. The defendant is sued as it was responsible for the management and control of the hospital.

4 The plaintiff’s case, as ultimately advanced, was that the defendant was vicariously liable for the negligence of the triage nurse. The negligence of the triage nurse was alleged to be that:

(a) she failed to assign the plaintiff to the appropriate triage category;

(b) she failed to contact the plaintiff’s mother, treating specialist, or the Wagga Wagga Community Mental Health Centre to obtain further information as to the plaintiff’s medical history when triaging the plaintiff;

(c) she failed to keep the plaintiff under adequate observation whilst he was at the hospital and failed to prevent him leaving the hospital before he had been seen by a doctor;

(d) she failed to ensure a search was made for the plaintiff upon discovering he had left the hospital waiting room; failed to contact the plaintiff’s mother, treating specialist, or Wagga Wagga Community Mental Health Centre and failed to request the police to locate the plaintiff and return him to the hospital.

5 The defendant has denied liability. The amount of damages recoverable, should the plaintiff succeed in his claim, is also in dispute. It is common ground that the issues of liability and damages are to be determined by the law of Queensland as the alleged negligence and damage occurred in that State.

Background

6 The plaintiff commenced to suffer symptoms of schizophrenia when he was about 23 years of age. During the period 7 April 1994 to 4 March 1997 he spent many months in hospital undergoing treatment for this condition. The admissions were generally as an involuntary patient. However, on a few occasions, he consented to admission, albeit, on at least one occasion, his consent was secured by informing him that if he did not consent he would be admitted as an involuntary patient in any event

7 The plaintiff’s condition was marked by persistent delusions that some agency was poisoning food and trying to establish him as the perpetrator; that people believed he was poisoning the food; and that he was under constant surveillance. These, or similar delusions, had been present since early in the course of his illness. He also suffered a delusion that he was liable to be assassinated by an execution squad. He said in evidence:

I always thought that too, right from the start, that I was basically liable to be assassinated.

8 The condition proved difficult to treat. Various medications including haloperidol were tried with little or no benefit. The plaintiff was often non-compliant with his drug regime. Electro Convulsive Therapy (ECT) was prescribed with mixed results. On admission to Albury Base Hospital on 30 April 1996 it was noted:

Diagnosis of schizophrenia which has been treatment resistant despite a seven month admission to Wagga Wagga Hospital in 1995 during which he was treated with a variety of antipsychotics and ECT.

9 On occasions the plaintiff would absent himself from hospital without permission. On one such occasion he travelled to Sydney, on another to Brisbane. On each occasion he returned safely.

10 Persons suffering from schizophrenia have a high suicide rate. Expert evidence was given that schizophrenia as an illness has a lifetime risk of suicide of 10% to 20%. The plaintiff experienced suicidal ideation from time to time. There was documentary evidence that he had attempted suicide on two occasions. These occurred on 1 April 1995 when he attempted to electrocute himself by throwing an electrical appliance into the bath whilst he was in it and on 25 December 1996 when he attempted poisoning by carbon monoxide in his mother’s car. There was evidence he had made preparation for a further suicide attempt in August 1996 when he stockpiled clozapine in order to take an overdose. There was some evidence the plaintiff may have made a suicide attempt whilst at school.

11 On 4 March 1997 the plaintiff was released from hospital subject to a community treatment order. The terms of the order required him, among other things, to live with his mother in Wagga Wagga and to take the medication prescribed for him by his medical advisers.

12 Thereafter the plaintiff remained in the community subject to such order which was renewed as appropriate. He was under the care of a psychiatrist, Dr Paton, who saw him from time to time and a care worker attached to the Wagga Wagga Community Mental Health Centre.

13 On 30 October 1998 the plaintiff left home and travelled to Melbourne. He intended to travel from Melbourne to Tasmania but lacked the funds to do so. As a result he took a bus from Melbourne to Cairns. He did not take his medication with him on leaving home. He left a note for his mother informing her he was travelling to Tasmania. His mother contacted the Wagga Wagga police and had the plaintiff listed as a missing person.

14 On his arrival in Cairns the plaintiff initially slept outdoors. However late on 5 November 1998 he became afraid and went to the local police station and asked to be allowed to spend the remainder of the night there. He told the police he was concerned that someone was trying to kill him. The police agreed to him staying at the police station. The plaintiff gave evidence that he felt safe there.

15 The evidence becomes a little unclear at this point. The plaintiff gave evidence he left the police station shortly after daybreak with the intention of proceeding to the bus station. Approximately five minutes after leaving the police station he was picked up by officers in a squad car and taken to the hospital. The evidence of Constable Loring was that he was on patrol and was called back to the police station where he met the plaintiff and conveyed him from there to the hospital. It does not seem to me necessary to determine which version is correct.

16 The plaintiff had apparently telephoned his mother from Cairns on 5 November 1998. In a subsequent telephone conversation with Cairns police she asked them to take the plaintiff to the hospital. She gave background information relating to the plaintiff to the police which they recorded in a note headed “INFO. FOR HOSPITAL”.

17 The plaintiff was driven by the police to the hospital where he arrived about 7.10am.

The events of 6 November 1998

18 The police log of Constable Loring records:

Transported Brendan Warner 14/4/70 to Cairns Base Hospital. Re – mental health – needs medication. Warner stayed at CBH of own free will. 0700 - 0735

19 Constable Loring gave evidence of his recollection of events as follows:

Well, I was called back to the police station in order to speak to somebody (the plaintiff) at the front counter ….

Q. What was the substance of (the conversation)?
A. I would have said, “OK mate, what’s the problem?” I recall him saying “Somebody is trying to kill me.” My next immediate question would always have been “Well who’s trying to kill you?” And he said “I don’t know”.

Q. What was the pursuit of the conversation after that as far as you can recall?
A. As far as I can recall that, to me, meant there’s something wrong here. I then would have asked him “Are you normally on medication of any kind? Do you need medication or have you ever been treated for a mental illness?” I recall him being very forthright and calm and he said “Yes”.

Q. What was his apparent demeanour when he spoke to you?
A. He appeared to be very calm and lucid.

Q. Were you at all concerned about his mental state apart from the complaint that he made?
A. No.

Q. What did you then do?
A. I then suggested to him that we should go to the hospital.

Q. Was he under any form of restraint.
A. No, no. Not at all.

Q. What did he say when you suggested that he go to the hospital?
A. He agreed. He said “Yes, okay.”

…

20 A copy of the note made by the Cairns police of their conversation with the plaintiff’s mother was tendered in evidence. Constable Loring did not recall the document. However I accept, as was admitted in the defendant’s answers to interrogatories, that the document was handed to the defendant by police following the plaintiff’s presentation to the emergency department of the hospital. The document was in the following terms:

INFO FOR HOSPITAL

Florence Dilys WARNER

He has seen Dr PATTON of Sydney

Extensive Medical File at Wagga Wagga Community Mental Health

02 69218303

He is on Medication

Taking OLANZAPINE (also known as ZYPREXA)

Tablet

20 ml per Day (2 x Tablets a day)

Be Firm – Problem – He hasn’t been taking his Medication

21 Constable Loring said his shift was from midnight to 8am and he would have clocked off at 8am when three general duties cars came on. He said the task of transporting the plaintiff to the hospital would not have taken from 7am to 7.35am as the log recorded. He explained “There’s an element of padding there”. He also said:

You don’t want to be doing anything between 7.30 and 8, you are knocking off, they don’t want you to incur overtime.

22 He also gave evidence:

Q. Providing time allowed for it, I take it if you had been contacted by the hospital with the news that this unmedicated schizophrenic lad had wandered off towards the bus station, providing time would have allowed for it, you would have again co-operated and gone and had a look for him?
A. Yeah, yeah, that was generally how it occurred.

Q. The hospital contacting you with things like this was, I take it, a not uncommon event?
A. No, no. It would happen on a regular basis. Whether that's regularly once a month, but it was, yeah.

23 The plaintiff gave evidence he was not given any medication at the hospital but was told by the nurse with whom he spoke that she was going to get a script. He just walked out while she was doing that job. He walked out the front door of the emergency department and got straight into a cab waiting at the cab rank there. He went straight to the bus station to catch the bus. His recollection was he waited about 10 minutes before heading for the bus but he didn’t wear a watch at the time and it may have been 5 minutes or more than 10 minutes.

24 The plaintiff gave the following evidence:

I had enough money for a cab and bus fare, but not a motel and a bus fare.

I was very concerned that I got the impression from what she was saying that basically they were just going to give me a prescription for my medication and leave me to it. And I really wanted an assurance that I would be put on a bus to Wagga. I didn't ask to be admitted, but what I wanted in my mind was to be either admitted or be allowed to get a bus to Wagga. And I got the impression from the nurse, when she said she was going to make out a prescription, she didn't say, she was just going to make out a prescription, she didn't exclude about committal, but all she mentioned was getting a script for medication. And I just had this impression that I was just going to be fobbed off and given a script and thrown back out in the street and living under a bush that night, because I missed the bus. I know how long they take to do anything, that was my main concern, missing the bus back to Wagga or Brisbane.

25 On arrival at the bus station the plaintiff purchased a bus ticket to Wagga Wagga. He said he had to wait three to four hours (he told Dr Skinner two or three hours) for the next bus and during that time he went to a service station across town where he had a shower. It took an hour to an hour and a half to get to and from the service station and attend to his shower. He apparently telephoned his mother to say he was getting on a bus and was on his way home. There was no evidence his mother sought to contact the police or hospital upon receipt of this information. In due course he caught the bus which conveyed him to the Brisbane Transit Centre where he had to wait for the bus to Wagga Wagga. The plaintiff gave evidence that he had no recollection of events after leaving the bus station at Cairns until he recovered consciousness in Brisbane Hospital. A file note (exhibit Y) suggests the plaintiff may have remembered something of the incident but as this document and its contents were not the subject of oral evidence, and as it differs from the plaintiff’s evidence, I do not accept it as reliable.

26 The triage nurse did not give evidence. She is still employed at the hospital. The defence indicated she would be called as a witness. However, on the day before she was due to give evidence, the Court was informed one of the nurse’s children was ill as a result of which she, as sole carer, would be unable to attend Court as intended and that a medical certificate was being sought. During the following week a medical certificate was tendered confirming the illness of the child. However senior counsel for the defendant informed the Court that the nurse was unwilling to come to Court and he was unwilling to compel her. The plaintiff submitted that a Jones v Dunkel inference, namely that the triage nurse’s evidence would not have helped the defendant’s case, should be drawn. In the circumstances one would have anticipated the defendant would call the triage nurse. There were video link facilities to the hospital which could have been used to obviate the need for her to travel to Sydney to give evidence. An adjournment could have been sought, if necessary. In my opinion, a Jones v Dunkel inference should be drawn to the extent appropriate.

27 A document headed “Emergency Department Triage” was also tendered. It records the following information:

CAIRNS BASE HOSPITAL UR No: ___________________________

NAME: Richard “Brendon” WARNER.

DOB: 14 / 04 /70 AGE: _______

Date: 6/11/98. Time: 0710 hrs

Triage Category & Code: 7D ALLERGIES NKA

WAITING IN: ARRIVAL MODE: REGULAR MEDICATIONS
Close small waiting room Police ZYPREXA
CHIEF COMPLAINT =

HISTORY:

· BIB Police. Pt went to station this AM seeking protection .

States someone trying to kill him.

· Denies halucinations.

· O/A Calm, cooperative. States getting bus back to NSW today.

RELEVANT HEALTH PROBLEMS:

Schizophrenia

TRIAGE RN SIGNATURE =

PRINT NAME:

(ALLOW ONE POINT FOR EACH PROBLEM)

AIRWAY CARE BODY TEMP

1

MOOD MOBILITY ENVIRONMENTAL

BREATHING COMMUNICATION VISION INTAKE & OUTPUT AGE <4 or >65 YEARS

CIRCULATION PAIN HEARING SKIN & WOUNDS 1 HEALTH PROMOTION

NURSING PLAN

For: obs.

TIME T P R BP

0715 364 59 18 115/55

TIME LEFT:

HOME / D.N.W. / ADMITTED

1

NURSING PND = 4

TIME:	EVENTS PND
0750	Pt not in SWR. J.C. RN.
0815	DNW. J.C. RN. Callander.

28 I accept that document was created by or at the direction of the triage nurse and that she had a conversation with the plaintiff prior to or at the time the sections “chief complaint” and “regular medications” were completed. This was conceded in the defendant’s answers to interrogatories.

Liability

Duty of care

29 The defendant admitted on the pleadings that it was responsible for the management and control of the hospital and that it has and had at all material times a duty to provide proper, timely and adequate medical and nursing care and proper and timely investigation and treatment to members of the public requiring same. The case was conducted on the basis that the defendant would be liable if negligence on the part of the triage nurse was established.

Breach of duty

30 As previously stated, the plaintiff alleges the triage nurse was negligent in four respects. These are separately discussed hereunder.

Failure to assign the plaintiff to the appropriate triage category

31 Triage is the process used to sort patients attending the emergency department of hospitals into categories according to the urgency of their need for care. It is the core function of an emergency department.

32 In 1994 the Australasian College of Emergency Medicine formalised the National Triage Scale (NTS). By 1997 the scale was in use in virtually all emergency departments in Australia and New Zealand.

33 The NTS provided five acuity categories namely:

1. Resuscitation - to be seen by a doctor immediately – these patients were critically ill;

2. Emergency - to be seen by a doctor within 10 minutes – these patients had less overt physiological disturbances than NTS 1 patients; and included patients considered “at risk” of critical illness, and patients with very severe pain from any cause;

3. Urgent - to be seen by a doctor within 30 minutes - these patients had significant illness or injury;

4. Semi-Urgent - to be seen by a doctor within one hour - these patients had only moderate symptoms, symptoms of prolonged duration or acute symptoms of prolonged duration or acute symptoms of low risk pre-existing conditions;

5. Non-Urgent - to be seen by a doctor within two hours – these patients present with symptoms of chronic disease, symptoms with a duration of greater than one week, or acute symptoms of minor illness.

34 Although the NTS Scale was used to categorise patients suffering physical and psychological conditions the examples given in the User Manual related only to physical problems. Later revisions of the scales added descriptions of psychiatric conditions falling within the various categories. In about 2001 Mental Health Triage Guidelines for Emergency Departments were published. These retained the same triage categories for treatment acuity but were specific to mental health problems.

35 Categories 3 and 4 of the Mental Health Triage Guidelines for Emergency Departments were in the following terms:

Triage Code

Description

Treatment Acuity

Typical Presentation

General Principles of Management

3

· Possible danger to self or others

· Moderate Behaviour Disturbance

· Severe distress

Urgent

Within 30min

OBSERVED
· Agitation/ restlessness
· Intrusive behaviour
· Bizarre/ disorganised behaviour
· Confusion
· Withdrawn and uncommunicative
· Ambivalences about treatment

REPORTED
· Suicidal ideation

Presence of Psychotic symptoms:
· Hallucinations
· Delusions
· Paranoid ideas
· Thought disorder
· Bizarre/ agitated behaviour

Presence of Affective Disturbance:
· Severe symptoms of depression/ anxiety
· Elevated or irritable mood

SUPERVISION
· Close Observation*

ACTION

Consider
· Consult Mental Health Specialist
· Re-triage if evidence of increasing behavioural disturbance

4

· Moderate Distress

Semi-urgent

Within 60 min

OBSERVED
· No agitation/ restlessness
· Irritability without aggression
· Co-operative
· Gives coherent history

REPORTED
· Symptoms of anxiety or depression without suicidal ideation

SUPERVISION
· Intermittent observation *

ACTION
Consider
· Re-triage if evidence of increasing behavioural disturbance

36 As stated in the 1997 NTS User Manual the principles of triage are of paramount importance and are:

· Every patient attending an Emergency Department should be received and triaged on arrival to a category of the NTS by an appropriately skilled health care professional.

· Triage requires a clinical decision, which has regard only to the patient’s individual need for care.

· The triage process should never take longer then a few minutes and must not delay the delivery of effective clinical care.

37 The triage nurse triaged the plaintiff “7D.” The “7” meant the plaintiff presented with a psychiatric condition, the “D” referred to a scale of “A-E” which was the equivalent of NTS 1 – 5. “D” was the equivalent of NTS 4 ie. the patient was to be seen within one hour.

38 This categorisation was made in circumstances where the plaintiff presented as calm and cooperative, had normal vital signs, denied hallucinations, had no thoughts of harming himself, the comments recorded by the police from his mother made no reference to suicide or self-harm, and the attending police officer had observed nothing unusual about the plaintiff’s demeanour or conduct whilst in his company.

39 The defendant, as to liability, qualified and called to give evidence a senior emergency medicine specialist, Professor Brown; a psychiatrist, Professor Lawrence; and a senior psychiatric nurse, Sister Fawsett, the Nursing Director of the Division of Mental Health Services Royal Brisbane and Women’s Hospital. Each of these persons possess qualifications and experience of a high order in their respective specialities. Each of them was of the opinion that the triage category to which the plaintiff was assigned was appropriate.

40 The plaintiff qualified and called to give evidence two senior specialists in emergency medicine, Drs Raftos and Vinen; a senior consultant psychiatrist , Dr Milton; and a senior emergency nurse, Sister Cloughessy, the Director of the Australian College of Emergency Nursing. As with the defendant’s qualified experts, these witnesses possess qualifications and experience of a high order in their respective specialities.

41 Dr Milton, in his report, referred to the plaintiff requiring immediate attention. However in cross examination he agreed that all of the material before the triage nurse suggested that the plaintiff did not need to be seen urgently but within an hour.

42 Dr Raftos in his report appeared to accept that it would have been appropriate to place the plaintiff in triage categories 3, 4 or 5. In cross examination he agreed that the categorisation of the plaintiff by the triage nurse as category 4 “wouldn’t be unreasonable” though he later said there was present a criterion for triage category 3. Furthermore, he agreed the meaning of “close observation” meant something less than constant or continual observation and meant that the nurse would “look in every now and then” and that the plaintiff did not require continual observation. He also agreed that in a base hospital you would expect only one triage nurse to be on duty for the shift.

43 Sister Cloughessy, in her report, had suggested that the appropriate triage categorisation was category 3. However, in cross examination, she agreed that it was appropriate to apply a mental health guideline which came into existence some years after 1998 and that, applying the Mental Health Triage Guidelines for Emergency Departments, the plaintiff fell “squarely within triage category 4”. She confirmed that matters which may have brought him within category 3 were not present.

44 Dr Vinen concluded the plaintiff should have received a higher triage category. However his report and evidence generally failed to distinguish clearly between the role of medical officers and triage nurses, and I do not accept it.

45 In my opinion the categorisation of the plaintiff as “7 D” by the triage nurse was appropriate. The presentation of the plaintiff accorded with categorisation 4 in the more specific Mental Health Triage Guidelines. The weight of medical opinion favours the conclusion that the plaintiff was appropriately triaged.

46 In my opinion the triage nurse was not negligent in assigning the plaintiff to the triage category which she did.

Failure to contact the plaintiff’s mother, treating specialist, or Wagga Wagga Community Mental Health Centre to obtain further information as to the plaintiff’s medical history when triaging the plaintiff.

47 The plaintiff submitted that the triage nurse should have telephoned the plaintiff’s mother, the treating specialist, or the Wagga Wagga Community Mental Health Centre when triaging the plaintiff in order to obtain a more complete medical history of him.

48 The defendant, in interrogatory answers, conceded no such telephone calls were made.

49 However the triage nurse only required such information as was necessary to perform her function of categorising the plaintiff, a function to be carried out within a few minutes. In my opinion the triage nurse had sufficient information before her to properly perform that task. This included the information from the mother contained in the police note.

50 The task of diagnosing and treating the plaintiff was a matter for the medical officer not the triage nurse. If further information as to the plaintiff’s medical history was required the medical officer, not the triage nurse, was the appropriate person to seek it. The defendant’s experts were all of this opinion.

51 Some of the evidence of Drs Milton and Vinen suggested that it was appropriate for the triage nurse to make such inquiries but it was apparent from cross examination that this was essentially the result of a failure to distinguish between the functions of the medical officer and the triage nurse.

52 In my opinion, there was no negligence on the part of the triage nurse in not contacting the plaintiff’s mother, treating specialist, or Wagga Wagga Community Mental Health Centre when triaging the plaintiff.

53 In any event there was evidence, which I accept, that information from the Wagga Wagga Mental Health Centre relating to the plaintiff would not have been accessible to the triage nurse at the time of triage; the telephone number of Dr Paton was not included in the information supplied by the plaintiff’s mother; and it would have been reasonable not to contact the plaintiff’s mother as she had already supplied to the police the information which she presumably considered appropriate to convey to the hospital.

Failure to keep the plaintiff under adequate observation whilst he was at the hospital and failure to prevent him leaving the hospital before he had been seen by a doctor.

54 It was submitted for the plaintiff that the triage nurse failed to keep the plaintiff under adequate observation, with the result he left the hospital before being seen by a doctor.

55 As appears from the emergency department triage document the plaintiff was waiting in the close small waiting room. An interrogatory answer of the defendant tendered by the plaintiff stated the plaintiff was left in a small waiting room unsupervised, but was under visual observation by the nursing staff who were present at the triage desk. A plan of the area, tendered by consent, confirms the waiting area could be observed from the triage desk.

56 I have found that the plaintiff was properly categorised by the triage nurse as category 7 D. The 1997 NTS User Manual did not specify the degree of supervision / observation required for a person categorised in the equivalent NTS category. The Mental Health Triage Guidelines for Emergency Departments specify “intermittent observation” for category 4 patients and “close observation” for category 3 patients. I accept that degree of observation was appropriate to each of those categories both in 2001 and 1998.

57 The hospital Introduction to Triage Learning Module (May 2001) states that one registered nurse per shift staffs the hospital triage desk. This accords with the evidence of Dr Raftos as to what would be expected at a base hospital. I infer it was the position in 1998. There would obviously be occasions when the triage nurse’s attention would be diverted such as when assessing new patients, handing over patients, etc. During that time a patient may leave without informing staff and do so unobserved.

58 The fact that this may and presumably did happen in the case of the plaintiff (the plaintiff’s evidence was that the nurse was attending to a script for him) does not bespeak negligence on the part of the triage nurse, having regard to the degree of observation required by triage category 4, or, for that matter, category 3.This conclusion is consistent with the opinion of the experts qualified by the defendant.

59 In my opinion a failure by the triage nurse to keep the plaintiff under appropriate observation has not been established. It is unnecessary to determine whether, had the nurse been aware the plaintiff proposed to leave she could have persuaded him to remain until he had seen a doctor.

Failure to ensure a search was made for the plaintiff upon discovering he had left the hospital waiting room; failure to contact the plaintiff’s mother, treating specialist, or Wagga Wagga Community Mental Health Service and failure to request the police locate and return the plaintiff to the hospital.

60 It was submitted for the plaintiff that as he was a young man, schizophrenic, away from home and his support bases and unmedicated, reasonable care required the triage nurse, on ascertaining he had left, to contact his mother, Dr Paton, or Wagga Wagga Community Mental Health Service, to obtain information as to the plaintiff’s history and, that, had she obtained that history, she should have requested the police to locate and return the plaintiff to the hospital.

61 The document headed Emergency Department Triage recorded “0750 patient not in small waiting room”; “0815 did not wait”. There is no evidence any steps were taken to try to locate the plaintiff between 0750 and 0815 hours. The defendant conceded in interrogatory answers that it first became aware the plaintiff had left the emergency department about 0750 hours when the plaintiff was called for review by a medical officer. The evidence does not establish when, between 0715 and 0750 hours, the plaintiff left the hospital.

62 The defendant admitted in interrogatory answers that the mother, Dr Paton, and the Community Mental Health Service were not telephoned after the plaintiff left the Hospital and no request was made to the police.

63 The Hospital’s Introduction to Triage Learning Module stated:

64 In my opinion, it was appropriate for the triage nurse to follow that course, particularly as the plaintiff had shown no intention to harm himself, he told Dr Skinner he was not suicidal when at hospital, there was no reference in the mother’s note to suicide, he was acting rationally in leaving to take the bus, he was entitled to leave if he wished, the triage nurse was working at a general base hospital and there was no reason to assume, if it be relevant, that she had specialised nursing qualifications in psychiatry.

65 I accept the evidence of the defendant’s experts and find the triage nurse was not negligent in not taking steps to contact the persons mentioned or request the police to locate and return the plaintiff to the hospital.

66 However, even if it be assumed the telephone calls were made and the nurse sought to contact the police further difficulties would remain;

(a) Would the police have responded to a request to locate and bring the plaintiff to the hospital? Constable Loring, if contacted when the plaintiff was first observed to be absent (7.50am) would have been within 10 minutes of the finish of his shift. His evidence indicates he would not have gone out at that time as to do so may have resulted in incurring overtime. In any event it is probable that by the time the nurse had made the other phone calls Constable Loring’s shift would have been completed. Other police at the Cairns Police Station may not have been as cooperative as Constable Loring. They may have had other police work to attend to or been of a different disposition.

(b) If the police had looked for the plaintiff would they have located him? The plaintiff apparently bought his bus ticket within a short time of leaving the hospital and before the police would have been contacted. He then went to a service station where he had a shower. Going to the service station and showering occupied one to one and a half hours. This would presumably have been the time the police were looking for him if they agreed to do so. The police on the new shift had not see the plaintiff previously, they had no photograph of him, and he would, to some extent have looked different to any description they were given once he had showered, particularly if he had shaved and changed his clothes. There was a high likelihood the plaintiff may not have been located.

(c) If the plaintiff had been located by the police would he have accompanied them back to the hospital? The plaintiff’s main concern at the hospital was to get to the bus and not miss it. Once the plaintiff had purchased the ticket to Wagga Wagga the situation changed from that which prevailed earlier in the morning when he voluntarily accompanied the police to the hospital. He had spent his money on the ticket, he had no funds to stay at a motel that night, he wanted to get back to Wagga Wagga and he was happy to leave Cairns. He was relieved to have the ticket in his hand, that was “like a defining moment”. He had an aversion to being admitted to hospital anyway. In these circumstances, particularly if the plaintiff was located only on his return to the bus station after showering, there was a real likelihood the plaintiff would not have agreed to accompany the police back to the hospital. There was nothing in the plaintiff’s conduct which would have justified a police officer conveying him to the hospital against his will pursuant to s 26 of the Mental Health Act (Qld).

67 In my opinion, even if there was a breach by the triage nurse in failing to request the police to locate and return the plaintiff to the hospital, the evidence does not establish that more probably than not the plaintiff would have been located by the police and returned to the hospital.

Causation

68 In addition to the causation issues considered in the preceding paragraphs two other major causation issues confront the plaintiff, namely:

(a) Did he jump from the third level of the Transit Centre?; and

(b) Would such an action have been avoided if the plaintiff had seen a Medical Officer at the hospital?

Did the plaintiff jump from the third level of the Transit Centre?

69 The third level of the Transit Centre was known as the Coach Deck. It comprised bus parking bays and an access roadway and footpath to street level. A 1.2 metre high parapet wall extended along the frontage of the third level. It abutted the footpath. On the other side of the wall was a 20 metre sheer drop to Roma Street.

70 There is no direct evidence as to the circumstances of injury.

71 The parties accepted there were three ways in which the injury could have been sustained:

(a) the plaintiff may have fallen from the third level of the transit Centre. This may have been because he leant over the wall or was sitting on the top of it and in either case overbalanced and fell or he may have slipped and fell. Plaintiff’s counsel accepted that if this was what occured the plaintiff could not succeed in his claim,

(b) the plaintiff may have been attacked or pushed or thrown from the third level of the Transit Centre. If this occurred then the plaintiff’s claim could not succeed if the attack was random, but it may be arguable that the attack was causally linked to the hospital attendance if the attack was a consequence of the plaintiff’s behaviour, due to his condition of schizophrenia,

(c) the plaintiff may have deliberately jumped, either in endeavouring to evade the execution squad which, in his delusional state, he believed was endeavouring to assassinate him, or in an attempt to commit suicide for some other reason related to his condition of schizophrenia.

72 The plaintiff submits the Court can and should infer the injuries were sustained in the manner set out in paragraph 71(c). The defendant submits that what occurred is pure speculation, no legitimate inference can be drawn and the plaintiff’s claim must fail.

73 In Holloway v McFeeters (1956) 94 CLR 470 at 480 the High Court said:

Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause “you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture … All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.

74 The evidence as to the circumstances of injury was essentially as follows:

(a) the plaintiff was a young schizophrenic, away from his home and support bases who had not been taking his medication and who at least on the night of 5 November and early morning of 6 November felt that people were out to kill him. Schizophrenics have an increased risk of self-harm,

(b) the plaintiff on 6 November appeared to police to be calm and composed. He presented as calm and cooperative at the hospital. He said he had no suicidal thoughts at that time. Police inquiries of his fellow bus travellers found no one who thought the plaintiff had been behaving in any way which was abnormal during the bus journey to Brisbane,

(c) the plaintiff, since being diagnosed with schizophrenia, had made two attempts on his life and had made preparations for a third. The last attempt was on 25 December 1996 when the plaintiff got out of the car as he did not like the smell of the fumes. Neither the second suicide attempt, nor the preparation for a drug overdose, were spontaneous. The plaintiff described his suicide attempts as “half-hearted” and said that he felt he could not go through with suicide. On 7 February 1997 the plaintiff had written to his doctor stating “I will not attempt suicide as I have learnt to deal with my predicament”. No suicide attempt after that date is documented. The plaintiff had been at the Transit Centre on prior occasions without coming to harm and had made long bus trips before without mishap,

(d) the Queensland Police Services’ return of subpoena indicated the relevant activity logs for 7 November 1998 had been destroyed after 5 years,

(e) a senior security officer’s statement dated 7 November 1998 reported:

STATEMENT
…
I noticed a man know known to me as Mr Richard Brenan Warner … lying in a pool of blood … I asked what happened and someone said that he had jumped from L3 … the said male landed on the ground missing a female pedestrian by 50cm … the said female stated she did not hear the above male scream or yell before or during his fall. She saw the person’s head hit the ground first followed by the rest of his body.

Upon my arrival at scene at exactly 17:40 hrs … there were two ambulance vehicles attending … a Det Sgt M.D. Butler went to L3 where it became apparent that the person mentioned had arrived in Brisbane on a Greyhound Coach from Cairns at approximately 1650 hrs male had booked an outgoing coach to Wagga Wagga at 1830 hrs … At 1906 hrs … the identification of the jumper was not positive at this moment.

This document was admitted into evidence by consent as a business record. However the defendant reserved the right to submit no weight should be attached to that part of the document which stated that “I asked what happened and someone said that he had jumped from L3” and that part which referred to the plaintiff as “the jumper”. I agree no weight should be attached to those comments. It is not clear what, if anything, was actually observed by the source of the information and to what extent the writer of the report recorded the totality of that person’s comments, particularly as the ambulance report, perhaps derived from the same source, records “witness stated fell (? jumped)” and the Brisbane Hospital discharge summary records “fall / jump 20m”,

(f) there was evidence that a 1200 mm metal fence was erected in 2002 on top of the wall. A business record of the managing agent of the site stated the reason for this was:

a person who was being interviewed by police officers on the level 3 Coach Deck … broke away from police and jumped to their death from that level, onto the roadway below.
There have been several attempted jumps from that level of the BTC in recent years, as well as several in which people have died after actually jumping.

(g) the height of the wall was such that a person, particularly a young man, may well have sat upon the top of it. Exhibit B(3) provides an indication of the relative height of the wall noting that the persons in the photograph were standing on the roadway and not the footpath which abuts the wall,

(h) the plaintiff gave evidence it was very unlikely he would have just been sitting on the wall and fallen over as he had never taken any unnecessary risks with heights. This was because he had had a fall from a tree when he was 9 or 10 years of age when he “sort of slid down the tree. It wasn’t major, but it shocked me”. However this appears inconsistent with his later employment as a roof tiler though he said he regarded exposing himself as a roof tiler to a fall of 10 to 12 feet as totally different to a fall of 20 metres,

(i) the injuries suggest the plaintiff hit feet first and then went forward onto his face, though the comments attributed to the eyewitness in the security officers’ report was that the plaintiff’s head hit the ground first. There was no expert evidence as to whether the injuries were more indicative of a jump or a fall.

75 I exclude from consideration the possibility the plaintiff was attacked and pushed or thrown over the wall as, if that had been suggested, I anticipate the police records would not have been destroyed.

76 There is a risk a schizophrenic may behave irrationally. There is a risk he may, as a result of his condition, seek to commit suicide. These are concomitants of the condition. There is no evidence that the plaintiff behaved in any abnormal manner from the time Constable Loring met him to the time he arrived in Brisbane, the evidence is to the contrary. He had told the police someone was trying to kill him. This reflected the presence of a treatment resistant delusion he had had “right from the start”. His last suicide attempt was in 1996. He denied he had suicidal ideation on 6 November 1998. It is possible the plaintiff did jump as a result of his schizophrenia. However it seems to me equally possible he had simply sat on the top of the wall or leant over it, overbalanced and fell. Either possibility is consistent with the ambulance record of the witness’ comment: “fell (? jumped)”, though the document appears to indicate: “fell” was the preferred description. In these circumstances it seems to me that whether the plaintiff fell or jumped is a matter of pure speculation and accordingly, I decline to draw the inference that the plaintiff jumped as a result of his schizophrenic condition.

If the plaintiff did jump would such an action have been avoided if he had been seen by a medical officer at the hospital?

77 Even if it be assumed the plaintiff jumped from the third level of the Transit Centre in a suicide attempt or in attempting to avoid an execution squad which, in his delusional state, he believed was trying to kill him, it would remain necessary for the plaintiff to establish that such an action would have been avoided had he been seen by a medical officer at the hospital.

78 There is no direct evidence as to what treatment the Medical Officer who would have attended the plaintiff would have prescribed, such being a matter for his clinical judgment at the time.

79 As a general rule, medication reduces the risk of delusions. The Medical Officer may have decided to medicate the plaintiff. The simplest course would have been to prescribe olanzapine tablets as that was the medication the plaintiff was taking at the time he left Wagga Wagga. Alternatively, with the plaintiff’s permission, he could have been injected with a long acting, slow release antipsychotic, possibly haloperidol.

80 However the plaintiff was treatment resistant. As his mother told Dr Skinner, the plaintiff’s delusions were long standing and only marginally relieved by antipsychotic medication. The hospital records for 12 September 1996 note the plaintiff “acknowledges that when on clozapine functioning better in society but delusions just as strong.” On 11 December 1998 Dr Paton wrote:

Brendan is well known to me. He has a treatment-resistant schizophrenic illness, and has been tried on clozapine. This was stopped when olanzapine became available. His response to this drug was similar to clozapine but he remained disabled, with persecutory delusions regarding poisoning of himself and others. His departure from Wagga and suicide attempt were not expected.

81 If the plaintiff did jump and that was due to a delusion that someone was trying to kill him then in my opinion it would be purely speculative to conclude that treatment at the hospital would have prevented this occurring.

82 The alternative was to admit the plaintiff to the hospital either as a voluntary or involuntary patient.

83 The Mental Health Act (Qld) s 18 provides that a patient may be admitted to a hospital for treatment of mental illness where the patient is suffering from mental illness of a nature or to a degree that warrants a patient’s detention in a hospital; and that the plaintiff ought to be so detained in the interests of the patient’s own welfare or with a view to the protection of other persons.

84 There was medical opinion called for the plaintiff that if the plaintiff had refused to be voluntarily admitted, he could have been detained pursuant to the powers in s 18. In my view these opinions were informed to a very considerable degree by hindsight. The defendant’s doctors were of the opinion that there was no basis to detain the plaintiff and that interference with his liberty would have been unjustified. I prefer the evidence for the defendant.

85 It is instructive to compare the presentation of the plaintiff at the hospital with his presentation at Wagga Wagga Base Hospital on 8 October 1994. On that occasion he was brought to the Base Hospital by two policemen. He was triaged category 2. The history given was that he had been drinking heavily that day. Over the past two weeks he had been living at home, not taking medications, apparently taking drugs, not washing himself, not looking after himself, aggressive, and annoyed. He said that he disliked hospitals, and hated their smell. He had no thoughts of self harm / suicide. He allegedly made threats to kill his mother, but was not psychotic. It was concluded there were no grounds to believe that he should be restrained under the Mental Health Act (NSW) and he was discharged from the Emergency Department.

86 In my opinion, it would be pure speculation to conclude the medical officer would have decided to admit the plaintiff to the hospital and that the plaintiff would have agreed to stay. It would be even more speculative to conclude the medical officer would have considered there was a sufficient basis to have admitted the plaintiff as an involuntary patient pursuant to s 18 of the Mental Health Act (Qld).

Conclusion

87 I have concluded, for the reasons which appear above, that the plaintiff’s claim must fail at the factual level. As a result it is unnecessary to determine whether the claim should be foreclosed for policy reasons as the defendant submitted (see generally Hunter Area Health Service v Presland (2005) 63 NSWLR 22) or whether, as the plaintiff submitted, the hospital’s potential liability to the plaintiff would continue, absent any true novus actus, until the plaintiff obtained other medical assistance.

Damages

88 The plaintiff is a single man. He was born in England on 14 April 1970 and migrated to Australia on 1 January 1982.

89 He was admitted to Brisbane Hospital on 7 November 1998 following the subject incident. He was transferred from there to Wagga Wagga Base Hospital on 1 December 1998 and ultimately discharged on 24 January 1999. He remained on crutches for three or four weeks after discharge.

90 He suffered a closed head injury with loss of consciousness as well as significant maxillofacial and orthopaedic injuries. The maxillofacial injuries comprised facial lacerations, severe compound comminuted bilateral body fractures of the mandible, an undisplaced fracture of the right mandibular condyle, an impacted fracture of the nasal bridge and a depressed fracture of the left zygomatic complex. Multiple teeth were damaged and required removal. Appropriate dental treatment was undertaken. The fractures were repaired during two operations, save for the nasal fracture for which the plaintiff declined treatment. This fracture remained in satisfactory anatomical position. The plaintiff suffered a left traumatic mydriasis.

91 The orthopaedic injuries comprised a grossly comminuted fracture of the left calcaneus, a taloid fracture of the right ankle, a fracture of the left olecranon and compression fractures of the fourth and fifth lumbar vertebral bodies. The fractures of the talus and olecranon required internal fixation.

92 The plaintiff’s main complaints are pain in both feet, the left more so than the right. On the left side he indicates of pain around the left calcaneus and on the right side in the region of the ankle. He gets this pain if he is on his feet for more than an hour. He complains of pain in the lumbar region of the back but there is no radiation to the lower limbs. He makes no complaint in relation to the left elbow though he has noticed he lacks coordination and strength in the left hand since the accident. He has no complaint of numbness or pins and needles in the left hand. He does have some pain in the jaw from time to time but can relieve that pain by doing special chewing exercises which he has been shown. He makes no complaint in relation to his head injury and does not have any headaches or dizziness. He walks without a limp. The plaintiff has scarring of the face, throat, left elbow, and right ankle. The scars are of good quality and do not particularly trouble him. The plaintiff does complain that his face appears flatter than it appeared prior to the injury. He has also suffered some deterioration of a pre-existing hearing loss and the mydriasis has resulted in some blurring of vision in the left eye, which will be present for the foreseeable future, though his vision should remain normal.

93 Dr Harvey considered it was inevitable the plaintiff would develop osteoarthritic changes of the subtalar joint in the left foot but that it was unlikely this would be the cause of increasing symptoms. The doctor did not consider surgical treatment would be required.

94 The plaintiff obtained his Higher School Certificate in 1998 and though he secured a place at university he deferred his university studies. He never commenced them, instead working as a roof tiler for a period of a little over a year, then as a packer for some months, as an accounts-payable clerk for the federal public service for six months and then as a seasonal fruit picker. He has not engaged in paid employment since the onset of schizophrenia. The plaintiff required an admission to a hospital for his psychiatric condition in May/June 2000 but has had no further admissions. His psychiatric condition is much improved. He has been working, unpaid, in a workshop doing computer repairs. In addition he has been doing TAFE courses. He hopes to find paid employment.

95 Dr Harvey concluded the plaintiff’s work capacity had been significantly reduced by the orthopaedic injuries which would make it difficult for him to do any work that involved prolonged periods on his feet, much walking or heavy carrying. He would have particular difficulty in walking over rough or uneven ground. The plaintiff had prior back problems. The effect of the back injury occasioned by the incident did not significantly add to the pre-existing back problems. The plaintiff claims damages for impairment of earning capacity as a result of the orthopaedic injuries.

96 A claim is made for care provided by the plaintiff’s mother prior to her death on 16 August 2005. Since July 2000 the plaintiff has lived alone in a flat in Wagga Wagga. He usually saw his mother each day prior to her death but was quite capable of looking after himself. His mother recorded he was a good housekeeper and able to cook for himself. He mowed his mother’s lawns. The plaintiff gave evidence that his mother attended to the housework prior to his injuries being sustained and provided him with encouragement and comfort.

97 It is unnecessary, having regard to my findings on liability, to assess damages. However in the event the matter should go further and damages become an issue I note the following:

a) The plaintiff submitted general damages should be assessed at $320,000. The defendant submitted the proper assessment was $125,000 - $135,000. I would assess general damages at $180,000.

b) The parties agreed that interest should be assessed on past general damages at 2% on 75% of the total general damages.

c) Past medical expenses were agreed at $3,167.05.

d) Most of the items claimed for future out-of-pocket expenses were agreed. They total $17,737.26. There was a dispute as to two items. The plaintiff’s claim for those items totalled $55,410.58. The defendant was prepared to allow $24,000.00 I would allow $35,000.00 for the disputed items.

e) The plaintiff claimed $51,723 for past gratuitous care including encouragement and emotional support (and advocacy) until the date his mother became terminally ill. He also claimed the cost of lawn-mowing and gardening from 7 November 1998 to July 2000 at $1,284. The defendant submitted there should be no allowance for mowing and gardening because it was a voluntary service provided by the plaintiff for his mother prior to the accident and, as such, not recoverable as a matter of law (save that it sounded in general damages). I would accept the defendant’s submission. The defendant allowed the plaintiff’s claim for past gratuitous care save for that part relating to encouragement and emotional support (and advocacy) which it submitted was not recoverable as a matter of law. I would accept the defendant’s approach. Accordingly the amount recoverable for past care is $20,867.

f) The parties agreed that interest on past gratuitous care should be assessed at 5%.

g) The plaintiff claimed $96,337.50 - $164,929.80 for future care. The defendant submitted no damages should be payable as the evidence did not support the plaintiff was receiving any assistance or would have any need for care in the future as a result of his injuries. I would accept the defendant’s submission. I do not consider the onset of future arthritic changes will create a need for future care.

h) The plaintiff makes a claim for past and future economic loss and past and future loss of superannuation benefits. The claim for damages for the past (including past superannuation loss and interest) is $181,944 - $191, 397.29. The damages claimed for the future (including superannuation) is $198,017.58 - $336,629.88. The defendant submits no damages should be awarded for past or future economic loss because the plaintiff’s injuries are not productive of economic loss. The plaintiff’s capacity to engage in sedentary work in the future has not been affected by the fall. It is probable if the plaintiff obtained employment it would be sedentary and no loss would result. The plaintiff’s capacity to do manual work or work involving much standing or walking is impaired as a result of the orthopaedic injuries. However he was unlikely to have engaged in such work had the incident not occurred by reason of his pre-existing back problems. I would allow him a cushion against the possibility that, but for the subject injury, he may have engaged for short intermittent periods in physical work which he cannot now do by reason of the subject injury. I would allow him a cushion of $100,000 inclusive of loss of superannuation and interest for past and future economic loss.

Orders

98 I make the following orders:

1. Verdict and judgment for the defendant.

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Citations

Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland [2006] NSWSC 593

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

2

Guest v The Nominal Defendant [2006] NSWCA 77

Hunter Area Health Service v Presland [2005] NSWCA 33

CITATION:	Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland [2006] NSWSC 593
HEARING DATE(S):	19/10/2005 - 21/10/2005, 24/10/2005, 26/10/2005 - 27/10/2005, 31/10/2005 - 01/11/2005.
JUDGMENT DATE :	19 June 2006
JUDGMENT OF:	Hislop J
DECISION:	1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant’s costs.
CATCHWORDS:	Negligence - Hospital - Psychiatric patient - Alleged negligence by triage nurse - No breach of duty - No causative link established.
LEGISLATION CITED:	Mental Health Act (NSW) Mental Health Act (Qld) - ss 18, 26
CASES CITED:	Holloway v McFeeters (1956) 94 CLR 470 Hunter Area Health Service v Presland (2005) 63 NSWLR 22
PARTIES:	Plaintiff - Brendan Richard Warner by his tutor the Protective Commissioner Defendant - State of Queensland
FILE NUMBER(S):	SC 20879/01
COUNSEL:	Plaintiff - Mr M. Williams SC with Mr A. Casselden Defendant - Mr J.L. Glissan QC with Ms S.A. Gallagher
SOLICITORS:	Plaintiff - Maurice Blackburn Cashman Lawyers Defendant - Tress Cox Lawyers