Heggie v Northern New South Wales Local Health Network - [2012] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed – Northern NSW Local Health Network v Heggie* [2013] NSWCA 255
CITATION:		Heggie v Northern New South Wales Local Health Network [2012] NSWWCCPD 9
APPELLANT:		Graeme Heggie
RESPONDENT:		Northern New South Wales Health Network
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-3199/11
ARBITRATOR:	Mr John Hertzberg
DATE OF ARBITRATOR’S DECISION:		13 September 2011
DATE OF APPEAL HEARING:		6 February 2012
DATE OF APPEAL DECISION:		28 February 2012
SUBJECT MATTER OF DECISION:		Reasonable action with respect to discipline; challenge to finding of reasonableness; s 11A of the Workers Compensation Act 1987; factual error affecting decision; Arbitrator overlooking material facts.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr R Hanrahan, instructed by Beesley & Hughes Lawyers
Respondent:	Mr P Perry, instructed by DLA Piper Australia
ORDERS MADE ON APPEAL:		1. The determination of the Arbitrator made in the Certificate of Determination dated 13 September 2011 is revoked, and the following orders are made in its place: “1. Award for the applicant in respect of weekly compensation at the rate of $396.10 per week as adjusted from 24 December 2009 to 14 April 2011 pursuant to s 37 of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts and/or receipts. 3. Respondent is to pay the applicant’s costs.” 2. Respondent is to pay the appellant’s costs of this appeal.

BACKGROUND

Mr Graeme Heggie commenced employment with Northern New South Wales Local Health Network, formerly North Coast Area Health Service (the respondent), in 2001. Mr Heggie worked initially on a part-time basis in various capacities and in 2006 was employed full-time as a security officer at the Tweed Hospital.
Whilst on duty on 4 June 2009 Mr Heggie received a phone call from a member of the nursing staff who informed him that he was “needed” at the ward known as Medical 1, bed 5. The caller rang off without giving any further detail.
Mr Heggie immediately responded, unaccompanied, to the caller’s request. Upon arrival at the ward he observed a 23 year old female patient (the patient) standing on a bed. The patient was at that time both verbally and physically aggressive. Four members of nursing staff were standing some distance from the bed.
The patient was recognised by Mr Heggie as being a person with whom he had dealings the previous day. On 3 June 2009 the patient had arrived by ambulance at the Emergency Department of the Tweed hospital in the company of two police officers. The patient, who had been physically restrained by the police, had been transferred from the public hospital at Mullumbimby where, it seems, a mental health certificate had been issued concerning her detention pursuant to the provisions of s 19 of the Mental Health Act 2007 (Sch 1). The patient’s conduct on that date and Mr Heggie’s involvement in managing the patient are addressed below.
Mr Heggie alleges that upon recognising the patient as he arrived at Medical 1 he was shocked. With the assistance of one staff member, he physically lowered the patient to the bed at which time threats and attempts to bite him were made. As the patient attempted to bite Mr Heggie, he received a small laceration to his right hand. The patient again attempted to stand at which time Mr Heggie attempted to restrain her. Detail of the evidence concerning this struggle appears below. Blood was observed on the patient’s mouth by some of those present.
Mr Heggie alleges that the patient ceased struggling following which he was directed by Ms Shirley Clarke, hospital supervisor, to leave the ward. The incident was notified on 4 June 2009 as a complaint by a staff member in which Mr Heggie’s conduct was described as an “aggressive act” being “verbal aggression, physical assault”.
The incident was also formally reported to the respondent by Mr Heggie. On 5 June 2009 Mr Phillip Button, security team leader, telephoned Mr Heggie at his home and directed him to attend the staff health nurse to have blood tests. Mr Heggie was at that time anxious concerning the possibility that he may have contracted HIV or hepatitis. Also on that day the police attended at the respondent’s hospital in response to a report made on behalf of the respondent that Mr Heggie had assaulted the patient. No complaint was made against Mr Heggie by the patient.
On 7 June 2009 Mr Button handed Mr Heggie correspondence from Ms Deb Podbury, the respondent’s general manager, informing him of “serious allegations” that had been made against him and that he was suspended on full pay pending investigation. Mr Heggie replied to that correspondence by letter dated 11 June 2009 in which the allegations were denied and the circumstances of the incident were summarised.
On 11 August 2009 police charged Mr Heggie with assault occasioning actual bodily harm.
On 4 September 2009 the respondent commenced an internal investigation concerning Mr Heggie’s conduct. Ms Podbury appointed Mr Chris Barron and Ms Helena Bernard as investigators. That investigation, which concerned three allegations of misconduct by Mr Heggie, resulted in a finding, in a report dated 2 October 2009, that the allegations were “substantiated”. Those findings ultimately led to the termination, on 23 December 2009, of Mr Heggie’s employment.
The criminal proceedings against Mr Heggie, conducted summarily, concluded on 5 April 2011 on which day an order dismissing the information was made by his Honour Magistrate Daken. It was found that the Crown had failed to prove that Mr Heggie did not act in self-defence.
In the interval between Mr Heggie being charged by police and his eventual acquittal (approximately 1 year and 8 months), Mr Heggie had had his security licence revoked by the authorities pending the outcome of the criminal charges, following a report made on behalf of the respondent. He also successfully completed his Bachelor of Nursing, but was prevented from registering with the New South Wales Nurses Registration Board until the criminal matter was determined.
Mr Heggie alleged that, as a result of the subject incident and subsequent action taken by the respondent, he suffered a psychiatric injury which has caused incapacity for work. On 28 June 2010 Mr Heggie presented a workers compensation claim form to the respondent. That claim form was accompanied by a medical certificate dated 22 June 2010 issued by Dr Stephen Huntsman, consultant psychiatrist. That document certified that Mr Heggie had been unfit to work from 4 June 2009 and thereafter.
Liability in respect of Mr Heggie’s claim was denied on behalf of the respondent by its insurer. Notification of that denial was given to Mr Heggie in correspondence dated 14 July 2010 pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That notice was in very broad terms and, of significance, reliance was placed upon the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act).
Mr Heggie commenced proceedings in the Commission on 19 April 2011. The application came before Arbitrator John Hertzberg for conciliation and arbitration on 29 August 2011. The matter proceeded to hearing and the Arbitrator, following submissions put on behalf of each party, reserved his decision. A Certificate of Determination issued on 13 September 2011. That Certificate was accompanied by the Arbitrator’s Statement of Reasons (Reasons). The Arbitrator made findings in favour of the respondent. The Arbitrator’s orders are recorded in that certificate as follows:
“The Commission determines:
1.The applicant sustained a psychological injury in the course of his employment.
2.The injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline.
3.Award for the respondent with respect to the applicant’s claim for weekly benefits and medical expenses.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An appeal against the Arbitrator’s decision was registered by Mr Heggie with the Commission on 11 October 2011.

ISSUES IN DISPUTE

The manner in which the “grounds of appeal and submissions in support” were expressed in the documents filed in support of the appeal did not permit a clear comprehension of those complaints made by Mr Heggie concerning the Arbitrator’s reasoning. Attention to those shortcomings was given during a telephone conference conducted on 22 December 2011. The issues raised on appeal were more precisely stated by counsel at the hearing of the appeal and may be summarised as follows:
(a) whether the Arbitrator erred in finding that the action taken by the respondent in respect of discipline was reasonable action within the meaning of s 11A of the 1987 Act.
The respondent argued on appeal that the psychological injury was caused wholly by the respondent’s reasonable action with respect to discipline on 7 June 2010 when Mr Heggie was stood down from duty.

HEARING

Having regard to the very large volume of documentary evidence and the state of the submissions as presented on the appeal it was determined at the earlier mentioned telephone conference that a formal hearing should be conducted. The matter was fixed for hearing on 6 February 2012 at which time each party was represented by counsel. That hearing was recorded and a transcript (TA) has been produced.

THRESHOLD MATTERS

There was no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.

ADDITIONAL EVIDENCE

Mr Heggie has sought the Commission’s leave to adduce additional evidence on this appeal. That application has been made pursuant to s 352(6) of the 1998 Act which provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The additional evidence appears to be an extract from the respondent’s General Manual which is headed “Duress Alarm Procedures”. That document concerns the respondent’s duress alarm system and summarises the proper use of duress alarms in emergency situations.
Mr Heggie submits that the additional evidence should be admitted given the circumstance that, at the hearing, a very large volume of documentation was tendered by the respondent at which time it was mistakenly believed by Mr Heggie’s representatives that the relevant documentation was included in the tender. I note at page 445 of the late documents tendered by the respondent is a single page which is headed “Code Black/Duress Response”. That page addresses “the aims of a duress response” and “the characteristics or features of an effective duress response”. That document is not as comprehensive in its treatment of the subject of duress alarms as is the additional evidence which Mr Heggie seeks to adduce on this appeal.
At the hearing of the appeal the respondent did not actively oppose admission of the additional evidence. However, the respondent has argued that it is not relevant to any issue raised on the appeal.
I am of the view that, in the interests of justice, the additional evidence should be admitted on this appeal. The document amplifies the matters which are addressed in the single page document which has been relied upon by the respondent. It is the respondent’s document and no argument has been advanced that the respondent is in any way prejudiced by the admission of the material.
The undermentioned paragraphs of the document are of particular relevance to the issues raised on the appeal:
“5.1.4Identify staff at risk of being threatened with violent and aggressive behaviour and allocate personal duress buttons accordingly. Where numbers allow all personal duress alarms are to be allocated to staff at every shift. If buttons are being used as a fixed location button all staff are to be made aware of its location.
...
5.1.7 Ensure staff are aware of the hospital and local procedures.
5.1.8Ensure duress alarms are worn where required and maintained in the fixed location.
...
6.5The alarm should be activated when an aggressive situation occurs or if you assess that it may occur, in order to protect yourself, others and property do not delay in calling for assistance.”
I grant leave to Mr Heggie to tender the additional evidence on this appeal.

THE ARBITRAL PROCEEDINGS

Proceedings before the Arbitrator were recorded, a transcript (T) has been produced and copies made available to the parties. The documentary evidence before the Arbitrator was summarised by him at the commencement of proceedings (T1.26-44). That material included all those documents attached to the Application and the Reply, and documents which each party had sought leave to tender as late documents. During the course of submissions counsel for Mr Heggie tendered copies of correspondence passing between him and Ms Podbury (T20.20-57).
Counsel for the respondent informed the Arbitrator that it was accepted that Mr Heggie had received a psychological injury, but that the question of causation of that injury remained in issue as well as there being a dispute as to the correct diagnosis of the psychiatric disorder. Counsel further stated that there was no dispute that Mr Heggie had been incapacitated up to 15 April 2011 (T2.34-37). The Arbitrator was informed that Mr Heggie had returned to work in April 2011 and that his earnings were $988.40 per week.

THE EVIDENCE

Mr Heggie’s evidence

The evidence of Mr Heggie is to be found in a statement made by him dated 12 April 2011. There are a large number of documents annexed to that statement including a seven page signed, but undated, summary of those events which occurred at the respondent’s hospital concerning the patient on 3 and 4 June 2009.
The statement made in April 2011 comprises 128 separate paragraphs. Mr Heggie summarised his background and qualifications which include a Bachelor of Commerce degree, gained by him in the early 1970s, and his subsequent business experience in New Zealand and Australia. He states that he completed studies for a Bachelor of Nursing degree at Southern Cross University in 2009. A copy of his degree, awarded on 23 April 2010, is annexed to his statement. The balance of the statement concerning matters raised on this appeal may be summarised as follows:
(a)     Mr Heggie at relevant times was employed by the respondent as a full-time licensed security officer at Tweed Heads hospital. On 4 June 2009 he received both a psychological and physical injury when, in the course of his duties, he was required to restrain a violent and aggressive patient in Medical Ward 1, Tweed Heads hospital. He states that as a result of that incident he suffered from depression and anxiety, the diagnosis being that of Post Traumatic Stress Disorder, for which he has been receiving treatment;
(b)     Mr Heggie had commenced work on 4 June 2009 at 3.45 pm. He was briefed upon arrival by his fellow security officer Mr Shane Matheson. Mr Matheson informed Mr Heggie that he had had a very difficult day trying to deal with the patient. Mr Matheson informed Mr Heggie that he had been injured whilst attempting to restrain the patient on that day. Mr Heggie observed swelling and bruising on Mr Matheson’s right forearm. Mr Heggie enquired as to whether the patient had been given medication to which Mr Matheson replied “Yes shitloads of medication has been given.” Mr Matheson stated that Mr Heggie was lucky that he would not have to deal with the patient as she had been transferred to the High Dependency Unit at Tweed Valley Clinic at approximately 2.00 pm that day;
(c)     during his shift Mr Heggie received a telephone call from a nurse attached to the Medical Ward seeking assistance. The nurse did not identify herself nor did she explain why assistance was required. When Mr Heggie attended the medical ward at 7.35 pm he recognised a female patient whom he had been required to restrain the evening before in the Tweed Heads Hospital emergency department. Once he recognised the patient he became “anxious and stressed”. He stated that his first reaction “on seeing the patient was traumatic, as I vividly recalled the traumatic events of the previous evening in ED, which involved violent struggles and injuries to the patient and other staff”. (The incident on 3 June 2009 is described by Mr Heggie between [21] and [43] and is summarised below at [30]);
(d)     at the time Mr Heggie attended the ward there were four or five nurses present standing back from the patient who was standing on a bed whilst verbally abusing the staff and waving her arms and kicking her feet. The mental health nurse from Tweed Valley Clinic who had accompanied the patient to the medical ward left the room shortly after Mr Heggie’s arrival on the scene. Mr Heggie moved towards the patient to restrain her as she was standing on her bed lashing out with her arms and legs. He was worried that she might fall from the bed. Mr Heggie was “particularly anxious” because he noticed that staff had not summoned the Hospital Emergency Security Response Team and that he suffered further anxiety when he realised that the nursing staff had not activated their duress alarms as the patient struggled violently against him as he tried to restrain her. He felt vulnerable and alone;
(e)     the patient lunged at Mr Heggie and bit him once and attempted to bite him on two further occasions. Mr Heggie held her by the wrists trying to restrain her at which time the patient said “I’m going to bite your fucking fingers off”. Mr Heggie “was forced to use a self-defence technique” he had been taught by the respondent some three months earlier. That course had been conducted by two male mental health nurses from the Tweed hospital. Mr Heggie described an “anti biting” self-defence technique which he stated that he followed to the best of his knowledge and ability. That technique is summarised in a document obtained from a security operations manual which is annexed to the statement. Mr Heggie’s actions were described (at [69]) as follows:
“in one quick movement, while holding the patient’s left wrist, I pushed my right hand toward her mouth and placed my [sic] hand in her mouth to stop her biting me. I then pushed her away from me”.
Mr Heggie was “moving forward” as he pushed the patient away from him and attempted to have the patient lie down flat on the bed. The patient calmed at that point and Mr Heggie was directed by Shirley Clarke, hospital supervisor, to “let the patient go and to leave the ward”. One hour later Mr Heggie informed Ms Clarke that he was “putting in a mandatory IIMS security report regarding the incident and the bite to his finger. Ms Clarke appeared to be upset when told of his intention and responded by saying “what for?”;
(f)      Mr Heggie stated that the bite to his finger, “although minor in nature, caused me distress because [it] put me at risk of contracting a communicable disease from the patient such as HIV or hepatitis”. A copy of the security incident report, which is undated, prepared by Mr Heggie is annexed to the statement. I note that there is also in evidence a copy of an AIMS incident detail “notified” by Mr Heggie dated 9 June 2009;
(g)     soon after the incident with the patient Mr Heggie swabbed his injury and went to the emergency department “to have the bite triaged”. The nurse in attendance stated that he had done the right thing but nothing further could be done. The emergency department was extremely busy and he would need to come back later. The following morning Mr Phillip Button, Mr Heggie’s security team leader, telephoned him and advised him to see the staff health nurse for the purpose of having blood tests. Mr Heggie at that time was “extremely anxious about the possibility” of infection. Efforts to have a “body substance exposure” test conducted through the staff health nurse failed and Mr Heggie was obliged to consult his general practitioner for the relevant blood tests. He was required to wait three months before relevant results were available. The delay in receiving the results “had a significant adverse impact on the intimacy of [Mr Heggie’s] relationship with [his] partner”. The tests were returned as being negative. During the delay Mr Heggie became “really upset” and his anxiety and depression became “worse”. He was “really scared” that he may have contracted a serious disease;
(h)     on 7 June 2009 Mr Heggie reported for work and was handed a sealed letter by Mr Button at which time “I was told to read it and to then leave the workplace immediately as I had been suspended from duty”. Mr Heggie was “devastated by this unexpected turn of events”. He then went home. He had been suspended pending an investigation concerning allegations that he had breached the NSW Health Code of Conduct when restraining the patient in the Medical Ward. He had been given no opportunity to explain what had occurred before he was suspended;
(i)      Mr Heggie stated that he had been told the patient “could have suffered minor injuries” when restrained but that he did not recall that he caused any injury. He further states that if there was an injury “it was as a result of adopting the approach to restraining an aggressive patient that I had been taught at a seminar that I had attended while working for the employer”. Mr Heggie consistently denied allegations that he had been verbally and physically abusive to the patient during his restraint of her;
(j)      Mr Heggie was charged by the police with assault occasioning actual bodily harm. On 23 December 2009, he had been summarily dismissed from his employment. The police charges were defended and ultimately dismissed in April 2011 by the Magistrate hearing the proceedings. An incomplete transcript of the hearing before the Magistrate is annexed to the statement. Also annexed is a copy of the police brief of evidence;
(k)     Mr Heggie stated that he had commenced unfair dismissal proceedings before the Industrial Relations Commission of NSW. He had been granted leave to commence those proceedings out of time. Reference is made by Mr Heggie to the statement of witnesses, being the nurses present at the relevant time in the Medical Ward, who alleged that he swore at and punched the patient. Mr Heggie had read the statements and denied that he swore and denied that he “did anything justifying any criminal charges against [him] or a dismissal”;
(l)      Mr Heggie had been applying for nursing positions at various hospitals and nursing homes. It was stated that Mr Heggie had his security licence revoked and his Nurses Registration Board application “rejected for six months and was only restored after [he] had to spend more money on legal costs”. Mr Heggie’s legal costs at the time of the statement “are in excess of $40,000”. He had had no income since his dismissal. Mr Heggie stated that he has had no response from his former employer to the incident report filed concerning the injury received on 4 June 2009;
(m)   Mr Heggie’s psychological injury has, it was stated, been aggravated by the respondent’s conduct. That conduct included making a complaint against his lawyers and an investigation that had been conducted concerning the actions of two fellow workers nominated by Mr Heggie as “witnesses”, and
(n)     Mr Heggie consulted his general practitioner, Dr Kearney of Cabarita Medical Centre, with respect to his anxiety and depression. That practitioner referred him to a psychiatrist, Dr Stephen Huntsman of Bangalow. Dr Huntsman’s treatment commenced in August 2009, being the earliest available appointment at the time that practice was contacted by Mr Heggie in June 2009.

The summary of events noted at [30] above describes relevant events on 3 June 2009 as follows:
(a)     Mr Heggie was on duty with his colleague Mr Murray Carlson. They were informed at 8.50 pm by the emergency department coordinator that the police and ambulance officers were in the emergency department with “a patient that needed security to be present”. On arrival at the door of the ambulance Mr Heggie observed a female patient who was being restrained by two police officers who were pushing the patient onto the stretcher as she tried to sit up and get off the stretcher. The patient had a cannula in her right wrist. One of the police informed him that the patient had been medicated “but it didn’t make any difference”. Mr Heggie was advised that the patient had been “scheduled under the Mental Health Act” and that she had come from Mullumbimby hospital. It was said that the patient had been extremely difficult to calm and control and that force had been needed to restrain her because “she was continually lashing out with her arms and attempting to get off the stretcher”;
(b)     the police advised Mr Heggie and Mr Carlson not to let the patient into a shower as they had experienced problems in Mullumbimby when force was required to remove her from the shower;
(c)     the patient was “extremely combative” and attempted to abscond while being held securely by the police. Both security officers and both police officers were needed to place her in “room 1 (a secure and lockable room) as advised by nursing staff”. The room was designed to accommodate patients “who are considered a danger to themselves or others”. The police left the scene after the patient was secured in the room;
(d)     a mental health nurse, Ms Ursula Cooper, was present. Attempts to settle the patient failed. Mr Heggie and his colleague restrained her at the door to the room and returned her to the room. Her behaviour was aggressive, threatening and she kicked and “lashed out” with her arms at the wall, the door and staff;
(e)     Mr Heggie notified the HSA (“hospital security assistant, security licensed”) team leader Mr Phil Kelley, seeking assistance. A wardsman attached to the emergency department was requested to stand by. A doctor was summoned. The patient was restrained by Mr Heggie and three others on a mattress while the emergency department doctor tried to talk to her. The patient continued to struggle and demanded that she be permitted to shower. Mr Heggie informed the doctor of the police experience with the patient showering. The doctor spoke to the patient asking if she would calm down if permitted to shower. The patient replied “yes” and calmed down. The doctor decided to allow her to shower;
(f)      the patient was escorted to the shower. After a reasonable time Ms Cooper requested her to come out but she refused. Mr Heggie and Mr Carlson were directed by Ms Cooper to enter the shower and remove the patient. After a struggle the three of them removed her. Ms Cooper had draped the patient with a blanket and kept it in place during this exercise. Mr Heggie found the experience of having to restrain a naked and struggling woman “uncomfortable”;
(g)     the patient was returned to the secure room. Two female nurses attempted to dress the naked patient but failed. Mr Heggie, Mr Carlson and Ms Cooper managed “with great difficulty” to dress the patient in a gown. Mr Heggie again felt uncomfortable;
(h)     Mr Heggie and Mr Carlson then stood outside the room which had a perspex panel in the door and observed the patient while Ms Cooper went to obtain some “information on the patient”. The patient continued to “yell, bang and kick at the door and walls”. Ms Cooper returned and informed Mr Heggie that the patient “had a history of violence and biting” and had been charged with a serious offence in Queensland “for biting a security officer”;
(i)      the patient continued to “scream and kick and hit out at the door and walls with her arms, legs and occasionally her head”. Medical staff decided to administer further sedative medication. Mr Heggie and others present were asked to “get a restraint team together”. Mr Heggie and four other staff members (including Mr Carlson and Ms Cooper) entered the room and restrained the patient. A cannula was inserted in the patient’s right arm and medication was administered after the patient had struggled for ten minutes. She settled briefly, and
(j)      the medication “did not seem to have much effect on the patient”. Violent behaviour continued until she settled “slightly”. Security was “stood down” at 10.30 pm. These events had occurred over a period of one hour and 40 minutes. Mr Carlson completed a security office Incident Report. Mr Heggie’s shift ended at 11.00 pm.
The events of 4 June 2009 are also summarised in the unsigned summary of events. The content of that document is in similar terms to that summarised at [31] above. Additional matters recorded include the statement that Mr Heggie witnessed the patient being “rapidly wheeled back to TVC (the mental health ward) in the company of four or five staff members” and that “the entire incident from when [the patient] left TVC and was transported to medical ward and then transferred back to TVC took only 15-20 minutes”.

Criminal proceedings

There is in evidence a copy of an incomplete transcript of the hearing before the Magistrate. Whilst it is clear, having regard to other material before the Commission, that Mr Heggie gave evidence before the Magistrate on the last day of hearing, there is no transcript of his evidence. That transcript does appear to include the evidence of all Crown witnesses. The police in those proceedings relied upon the evidence of the patient and six members of the respondent’s staff. It is unnecessary to summarise the evidence given by the individual witnesses; however, it is to be noted that there was clear evidence as to the violent behaviour of the patient at the respondent’s premises on both 3 and 4 June 2009.
The transcript details the manner in which Mr Heggie conducted himself on 4 June 2009 as described by a number of the witnesses. It is clear that the assault relied upon by the prosecution concerned the allegation that Mr Heggie had forced the patient’s fists into her face during the course of the struggle which occurred in the medical ward. The evidence concerning Mr Heggie’s conduct by those who were present and actually observed the struggle varies in detail. It was the evidence of Ms Cason, registered nurse, that Mr Heggie had “brought the patient’s own fists back to the left side of her face continuously”. Ms Cason also stated that Mr Heggie had used the word “bitch”. Ms Taylor, enrolled nurse, also gave evidence that Mr Heggie had addressed the patient as “bitch”. Ms Clarke gave evidence that Mr Heggie had pushed the patient’s fists down onto her mouth on two occasions. Ms Dicker, registered nurse, gave evidence that Mr Heggie had hit the patient with her own hands on four occasions. Some of the witnesses gave evidence that they had observed a small amount of blood on the patient’s lips and teeth. A number of the police witnesses gave evidence that the patient appeared to be attempting to bite Mr Heggie.
The evidence before the Magistrate clearly establishes that the patient had been transferred to the Medical Ward from the hospital’s mental health clinic for appropriate treatment following administration of excessive sedation. She had, it seems, demonstrated significant respiratory difficulty and was to be monitored in the Medical Ward.
There is a copy of the judgment of his Honour Magistrate Daken in evidence. As mentioned earlier the Magistrate dismissed the information. In the course of his findings the Magistrate made the following observations which represent his summary of the evidence concerning the patient’s conduct at the respondent’s hospital premises:
“It is established on the evidence that [the patient] was a violent person, she made no complaint during her time at the hospital I should say on the 3^rd and 4^th of June 2009, she made no complaint to police about the conduct of Mr Heggie and indeed, as I understand her evidence she was first interviewed by a police officer in respect to the matter many months after the incident occurred, it seems that the actions of Mr Heggie were brought to the attention of police by staff associated with the Mental Health service, sorry the Northern Rivers Area Health Service and as a result of that Constable Mezgec then interview the defendant, She [sic] in fairness gave evidence to the best of her ability, that is [the patient], she said that she has battled with various mental illness issues over a considerable period of time and she has limited memory about what occurred on this occasion, she was apparently covered in bruises as a result of her conduct in [sic] both the 3^rd and 4t [sic] of June and the prosecution don’t rely on those injuries to substantiate actual bodily harm, she says that indeed she took some responsibility for the bruising because it was probably as a result of her own actions over those 2 days or at least a day and a half in terms of hour [sic] that were involved. That in my view sets the background for the situation which confronted not only Mr Heggie but all of the mental and nursing staff that came into contact with [the patient] on both these days, She [sic] was sufficiently violent and uncontrolled over these days, what is significant in terms of bruises as [sic, was] the number of bruises seen and Mr Heggie said he was surprised if not shocked at the number of bruises, which demonstrates that she was completely resistant and quite aggressive and indeed I accept the submission that it was, and the evidence relied upon to support it, that she was a danger to herself on both the 3^rd and the 4^th of June and that she was also a danger to other staff members, it seems that there was at least in one of the crown witnesses a concern that once her breathing had stabilized and the issue of over sedation had been overcome that there was an imperative to get her back to the mental health unit, of course the inference to be drawn from that is that she could be better controlled in that location then [sic] she could in the general ward. She did say in her evidence that she probably tried to bite, she probably tried to punch out at the defendant during the course of her struggles and it would be contrary to common sense in my view and common experience that that is an emotion charged and intense chaotic circumstance as it has been described by other witnesses, the person in the position of [the patient] at the time who it seems to be was probably floridly mentally ill, and an accurate and detailed description of what occurred would be in any way reliable or indeed in any way in her circumstances possible [sic, to] give.”

Evidence of Ursula Cooper

Mr Heggie relied upon the evidence of Ms Ursula Cooper found in a lengthy written statement which is undated and unsigned. I note that at [121] of Mr Heggie’s statement dated 12 April 2011 he made reference to this statement and acknowledged that it had not been signed by Ms Cooper; however, he expected Ms Cooper to sign the document after the completion of proceedings which Ms Cooper had commenced against the respondent. There is no evidence before the Commission that suggests Ms Cooper has subsequently signed the original document.
Ms Cooper is a mental health emergency care nurse who had been employed by the respondent. She has 32 years experience in mental health nursing including management, education and research. She is acquainted with Mr Heggie and her statement, which had been prepared by Mr Heggie’s solicitors, contains numerous observations concerning the high professional standard of Mr Heggie’s work as a security officer.
Ms Cooper had dealings with the patient on both 3 and 4 June 2009. Ms Cooper describes the violent behaviour of the patient and the significant difficulties encountered by the hospital staff in managing her treatment. Ms Cooper had obtained information, including that provided by the patient’s family, that the patient had a history of violence and aggressive behaviour, including biting, and that she had been charged with a serious offence in Queensland for biting a security officer.
Ms Cooper, in the course of her duties on 3 June 2009, had dealings with the psychiatric registrar, Dr Bilal and other medical practitioners concerning management of the patient. Ms Cooper expressed her view that the patient was being put at “risk” because of the level of sedation that had been administered to her. The patient had been continually sedated until a bed was available in the mental health clinic. Notwithstanding that sedation the patient “continued to struggle and required at least four staff to stop her from biting us, hitting us and hurting herself in the process”.
On 4 June 2009 Ms Cooper, at the direction of medical staff, administered 20 milligrams of olanzapine to the patient orally. When doing so Ms Cooper “noticed her tongue swollen, her lips were swollen with minor lacerations on them, and she had red pressure marks on her face”. The statement as drafted is somewhat confusing. It seems that the patient was not admitted to the mental health clinic until the early afternoon of 4 June. Ms Cooper was present during that transfer and states that the patient was “put into the seclusion room”. At that time the patient was “clearly seriously affected by medication as she was running into the walls of the seclusion room”. Ms Cooper also states that the patient had “many injuries in the form of bruises”. Ms Cooper felt extremely uncomfortable and distressed.
Ms Cooper states that, at some unspecified time, she had made a request to her nurse manager for access to the records of medication of the patient. The manager was informed that the request was made to enable Ms Cooper to make a statement. The medical file, upon which Ms Cooper’s name appeared, was produced. Details of the medication administered to the patient appear in a separate document annexed to the statement of Ms Cooper.

Evidence of Murray Carlson

There is in evidence a statement by Mr Murray Carlson dated 13 March 2010. Mr Carlson is a licensed security officer employed by the respondent. His statement includes a detailed description of the behaviour of the patient on the night of 3 June 2009. The patient initially had to be restrained by the police upon arrival at the emergency department on that date. Mr Carlson proceeds to describe the combative conduct of the patient and details those actions required of him and Mr Heggie and others to restrain her. The description also includes detail of the circumstances giving rise to a need to remove the patient from the shower.

Mr Heggie’s claim

A copy of Mr Heggie’s compensation claim form dated 28 June 2010 is in evidence. Reference is made in that document to an attached statement which has not been tendered in evidence. The date of injury was stated as 4 June 2009, the injury was described as “psychological PTSD, bite to finger”. A WorkCover NSW medical certificate issued by Dr Huntsman dated 22 June 2010 which was enclosed with the claim form is in evidence. Dr Huntsman’s diagnosis is that of post traumatic stress disorder. The certificate includes a description of how that injury occurred as follows: “assaulted while attempting to restrain an agitated patient”. The date of injury is noted as being 4 June 2009.

Evidence of Dr Huntsman

There are three reports of Dr Huntsman in evidence dated 18 February 2010, 26 March 2010 and 19 April 2011. The first of those reports noted that Dr Huntsman had been first consulted on 17 August 2009 after Mr Heggie’s referral “with depression” by Dr Kearney. That report notes that Mr Heggie’s symptoms of depression and anxiety were “in the context of what [Mr Heggie] believed was unreasonable disciplinary action by his employer”.
Dr Huntsman’s report of 26 March 2010 describes symptoms of anxiety and depression suffered by Mr Heggie “in the context of disciplinary proceedings arising from an incident at work in which he was required to restrain an aggressive patient with a psychiatric condition and a known history of violence”. Dr Huntsman’s initial diagnosis was stated as being an adjustment disorder with depressed mood and anxiety. That diagnosis was subsequently revised to “major depression, single episode, as defined in DSM-IV”. Dr Huntsman proceeded to state in that report:
“Factors Contributing to Diagnosis
Mr Heggie’s depressive illness has arisen as a result of the stress associated with the aftermath of the incident at work described above. Mr Heggie’s strong belief is that he performed his duties appropriately and that his actions were necessary in order to prevent harm. He was shocked to be the subject of a complaint. To then be subject to criminal charges and his future career placed in jeopardy was intensely distressing.”
Dr Huntsman’s report of 19 April 2011 was tendered as a late document before the Arbitrator. In that report Dr Huntsman expresses the view that “Mr Heggie should never again work as a security guard”. Dr Huntsman stated, “the impact of facing criminal charges and being dismissed from employment, simply as a result of attempting to perform his duties, has been extremely traumatic for Mr Heggie and resulted in severe symptoms of depression and anxiety”.

Correspondence with Ms Podbury

The three items of correspondence passing between Mr Heggie and Ms Podbury, the respondent’s general manager, which were tendered during the course of addresses on behalf of Mr Heggie, relate to the charges, the investigation and its outcome and Mr Heggie’s explanation concerning the events at the respondent’s premises on 4 June 2009. That correspondence, where relevant, is noted below.

Further evidence

There are a great many other documents including policy documents relating to the conduct of the respondent’s service which are not directly relevant to matters raised on this appeal.

The respondent’s evidence

The respondent has annexed a copy of its submissions and evidence put before the Industrial Relations Commission of New South Wales in proceedings commenced by Mr Heggie seeking a remedy against the respondent pursuant to s 84 of the Industrial Relations Act 1996. Those submissions, which comprise 52 paragraphs, represent the respondent’s summary of events which led to the suspension and ultimate dismissal of Mr Heggie. The evidence relied upon by the respondent in those proceedings included the sworn statements of eleven individuals including statements made by five staff members of the respondent who were present during the incident which occurred on 4 June 2009. The other statements relied upon included one made by Hikaurua Tamihana, a registered nurse employed by the respondent, whose statement addresses his involvement in “Prevention and Management of Violence and Aggression (PMVA) training”. There are statements made by Christopher Barron and Helena Bernard, each of whom had been appointed by the respondent to conduct the investigation into the allegations made against Mr Heggie. There is also a sworn statement of Christopher Crawford, the respondent’s chief executive. Mr Crawford’s statement addresses the outcome of the investigation into the allegations made against Mr Heggie which, it was stated, were “substantiated”. Mr Crawford states that, in accordance with a recommendation made by the general manager, Ms Podbury, Mr Heggie’s employment was terminated on 23 December 2009. A statement made by Virginia Bridge, industrial relations advisor employed by the respondent, is relied upon. That statement addresses the management of disciplinary action generally and also the history of Ms Bridge’s management of earlier investigations in which Mr Heggie had some involvement. There is a sworn statement by Phillip Button, the respondent’s security manager. Mr Button on 7 June 2009, had a conversation with Mr Heggie and handed him correspondence which had been prepared by the general manager. At that time Mr Button observed “the bite mark” referred to by Mr Heggie and described it as “something I could barely see. I would describe it as a nick”.

The respondent on this appeal also relies upon a large number of documents which were, it seems, tendered as evidence before the Industrial Relations Commission of New South Wales. Those documents include:
(a)      Policy Directive (PD2006-026), “Criminal Allegations, charges and convictions against employees” dated April 2006 which outlines procedures on how management ought to respond or investigate criminal allegations, charges or convictions made against staff;
(b)     New South Wales Health Code of Conduct which addresses subjects including discrimination, harassment, bullying and violence, and
(c)     Policy Directive (PD2005-225), “Disciplinary Process in NSW Health – A framework for Managing” dated February 2005.
There is a sworn statement made by Guy Dayhew, occupational therapist employed by the respondent. One aspect of Mr Dayhew’s employment is that he is senior PMVA trainer for what is described as “the Richmond Network”. At [36] it is stated by Mr Dayhew “at no time is the PMVA training consistent with the use of striking, violence or uncontrolled force against the patient”. Attached to that statement is a copy of the PMVA facilitator’s manual and a copy of the participants’ manual. That documentation is lengthy and includes reference to the Mental Health Act 2007 as well as the following statement:
“At times a staff member’s duty of care to a client may justify the use of detainment, restraint or sedation. In these situations having exercised a duty of care may be a defence for staff members against claims of false imprisonment or assault. Not exercising a duty of care may result in a claim of negligence depending on the circumstances”.
The participants’ manual addresses, in brief terms, the Crimes Act 1900 and the “Principle of Reasonable Force”. Under that heading the following appears:
“•     Reasonable force is the amount of force considered to be appropriate in proportion to the perceived danger posed.
·        When a person considers that they or others are under attack or threat, and self-defence or the defence of others is required, the amount of force that is used must be considered to be consistent with the perceived threat faced.
·        Each case is judged on considering its unique circumstances, the threat that was posed, level of training and support and options available.
Restraint
·        Restraint may be necessary in emergency situations involving aggressive clients, where there is a foreseeable risk of harm to themselves or others. At all times policy requirements relating to clinical restraint should be adhered to.
·        When staff restrain a client they must use only reasonable force in order to be protected from prosecution for assault. This is regardless of the legality of the restraint or detention.
·        An unlawful restraint may result in a charge of false imprisonment.
·        With regard to the restraint of others in the act of committing a crime, the first consideration for staff is their own safety and the safety of others. Attempting to restrain in these circumstances may expose staff to unnecessary risks, and unless there is an immediate and significant threat to the safety of others staff should retreat and observe from a safe distance, and police should be called.”
There are copies of incident reports concerning the events on 4 June 2009 prepared by Mr Heggie. It is stated in one of those reports, being an AIMS Incident Detail, in response to the question “how could the incident have been prevented?” – “patient should have remained in TVC or had security on site in the medical ward”.
The respondent relied upon copies of two notices issued pursuant to s 74 of the 1998 Act, the first dated 14 July 2010 and the second dated 22 December 2010. Those notices each particularised reliance upon the provisions of s 11A of the 1987 Act, as well as a denial of incapacity.
A copy of the investigation report dated 2 October 2009 concerning the allegations made against Mr Heggie is in evidence. That report included findings that the following allegations had been “substantiated”:
“(a)On 4 June 2009 at approximately 19.30 hours Mr Heggie was verbally aggressive towards a patient in the medical ward of the Tweed hospital in breach of the NSW Health/NCAHS code of conduct.
(b) On 4 June 2009 at approximately 19.30 hours Mr Heggie was physically aggressive towards a patient in the medical ward of the Tweed hospital is [sic] in breach of the NSW Health/NCAHS code of conduct.
(c) On 4 June 2009 at approximately 19.30 hours Mr Heggie pushed the fist of a patient into the patient’s mouth causing it to bleed which is in breach of the NSW Health/NCAHS code of conduct.”

Submissions before the Arbitrator

Counsel for the respondent accepted that the onus of proving that the psychological injury received by Mr Heggie was wholly or predominantly caused by reasonable action taken by the respondent with respect to those matters enumerated in s 11A was upon his client.
The evidence of Dr Huntsman was relied upon by the respondent in support of the submission that the psychological injury was, not PTSD as alleged, but “major depression, single episode, as defined in DSM-IV”. It was, at first, argued that the predominant cause of the injury was the suspension on 7 June 2009, which may be characterised as discipline, as well as the dismissal on 23 December 2009 (at T9). It was argued that there was no medical evidence to support the allegation of injury having been received on 4 June 2009 when the patient had been restrained by Mr Heggie.
It was put that both the suspension and dismissal were “reasonable” within the meaning of s 11A. It was put that the respondent had “no choice” other than to stand Mr Heggie down (at T13).
Counsel proceeded to address the evidence concerning the investigation process and argued (at T16) that there was “nothing precipitate about the acceptance” by the investigator, Ms Podbury and Mr Crawford, “that something had to be done” and that Mr Heggie “could not be kept on the payroll, could not continue to work as a security officer for the safety of patients”.
It was argued that the respondent’s report on the matter to the police was not unreasonable and that its failure to do so would be a “dereliction of duties” (at T17). Reference was made to the NSW Health Policy Directive (PD2006-026) (noted at [52] above).
Reliance was placed by counsel upon the decision of the Court of Appeal in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (Jeffery) in support of a general submission that it should be found that the respondent acted reasonably, and that a defence founded upon s 11A had been established.
Counsel for Mr Heggie argued that the respondent’s “narrowing of the focus” of the investigation had resulted in “unfairness” to his client and “represents unreasonable behaviour on the part of the respondent”. Mr Heggie and his “witnesses” had, it was put, been ignored. Similarly, no attention had been given to the clinical condition of the patient.
The result of the respondent’s action, it was argued, had been “a waste of resources” and a “witch hunt”.
Counsel proceeded to criticize the respondent’s management of the patient from the date of her admission to the emergency department and it was put that the “predominant” cause of Mr Heggie’s injury was that mismanagement.
It was argued that, had the patient remained in the mental health clinic the “events of the night before” may or may not have been repeated. However, no complaint was made of Mr Heggie’s conduct on the first night “because he was properly supported”. There were two security officers and a psychiatric nurse present.
It was suggested by counsel that the respondent’s approach was influenced by its wish to avoid criticism for its management of the patient. The relevant circumstances, it was argued, date from 3 June 2009. The evidence, it was put, establishes that when Mr Heggie recognised the patient on 4 June 2009 he was “shocked”.
Reference was made by counsel to the failure to use a duress alarm system which, it was put, “tipped” all responsibility “onto the shoulders of [Mr Heggie]”.
The respondent should, it was argued, have broadened the enquiry. Such an approach would have given the respondent a “proper perspective on the nature of the patient” and would have permitted a more reasonable response to the allegations made against Mr Heggie. In failing to do so, the suspension, and the manner in which it occurred, was said by counsel to have been unreasonable.
A further example of the respondent’s unreasonable response is demonstrated by the respondent’s “immediate referral to the police, complaints to the Health Complaints Commission and communications with the licensing officers for security persons” which was described by counsel as “an over-reaction”.
Counsel then summarised his argument concerning the issue of reasonableness (at T31) by stating that:
(a)     it was not an open enquiry;
(b)     it did not include all the evidence or all the circumstances that led up to the event;
(c)     it did not consider the evidence of all the witnesses, and
(d)     it rejected without reason the evidence of Mr Heggie.
Counsel concluded argument by making reference to a suggestion of ongoing entitlement to weekly benefits pursuant to s 40 of the 1987 Act.

THE ARBITRATOR’S DECISION

The facts were summarised by the Arbitrator (between [1]-[8] of Reasons) and the issues requiring determination were summarised at [12] of Reasons. That summary of the issues is a clearer statement of the matters in dispute than that which appears in the transcript of proceedings (at T2).
Following a summary of the evidence a finding was made (at [31] of Reasons) rejecting Mr Heggie’s allegation that “he has suffered from post traumatic stress disorder as a result of being bitten in a violent altercation with the patient and alleged trauma from having to be tested for transmitted disease or infection”.
Further findings were made that Mr Heggie had suffered a psychological injury, diagnosed by Dr Huntsman as anxiety and depression. That injury was “as a consequence of the suspension and subsequent investigations following the incident on 4 June 2009” (at [32] and [33] of Reasons).
At [37] of Reasons the Arbitrator found that the psychological injuries “were as a result of the procedures that were implemented following the incident on 4 June 2009. These were the suspension from duty, the reporting of the matter to police, the police investigation and the subsequent investigation by the employer”.
The Arbitrator accepted that the dismissal of Mr Heggie in December 2009 and other matters such as the need to commence proceedings in the Industrial Relations Commission, having registration as a nurse delayed and revocation of his security licence may “have impacted on [Mr Heggie’s] injury by way of aggravation or exacerbation”. It was also concluded by the Arbitrator that “it is quite clear from Dr Huntsman’s report that [Mr Heggie] suffered a significant and debilitating psychological injury immediately following his suspension from duties”.
The suspension and subsequent investigation were found to be “actions taken by [the respondent] with respect to discipline”. The finding was made “that the main or principal cause of the injury was action taken … with respect to discipline” (at [42] of Reasons).
The Arbitrator observed that there was no need for him “to assess” the respondent’s actions in dismissing Mr Heggie. The actions which required assessment were those which caused the injury. Those actions, it was found, were wholly or predominantly the suspension of Mr Heggie, the instigation of an investigation by the respondent and an investigation by the police (following referral by the respondent). The Arbitrator proceeded to summarise the evidence of those staff members who witnessed the incident of 4 June 2009. A finding was later made (at [58] of Reasons) that:
“The injury was wholly or predominantly caused by the actions of the employer in suspending [Mr Heggie] and instituting an enquiry. These actions occurred between 7 June 2009 and 13 August 2009”.
The Arbitrator proceeded, at [60] of Reasons, to summarise those “factors” he considered relevant to the question of the reasonableness of the respondent’s action. At [61] of Reasons the Arbitrator expressed his conclusion that “it was entirely appropriate and reasonable for [the respondent] to commence an investigation and for [the respondent] to suspend the applicant pending the outcome of that investigation”.
The Arbitrator also found that it was reasonable that the incident be reported to the police authorities. An award was entered in favour of the respondent.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The Arbitrator’s finding that the suspension of Mr Heggie from duty on 7 June 2009 and the subsequent investigation were actions taken by the respondent with respect to discipline (s 11A) was ultimately not challenged by Mr Heggie on this appeal. It is his contention that the Arbitrator has erred in his determination that such action was reasonable action within the meaning of the section.
Argument advanced on behalf of the respondent seeks to support the Arbitrator’s conclusion as to reasonableness. However it must be noted that the respondent emphasised in submissions at the hearing of the appeal, that the evidence supports the conclusion that the cause of the admitted psychological injury was the suspension of Mr Heggie from duties on 7 June 2009 alone. Such argument was, to an extent, a departure from the respondent’s case as argued before the Arbitrator. This shift in emphasis is but one example of the alteration of each party’s position during conduct of the proceedings.
Another example is the abandonment by Mr Heggie of his allegations of injury and as to diagnosis as particularised in his application and heard before the Arbitrator. At the hearing of the appeal, counsel stated that Mr Heggie’s allegation was that injury resulted not only from the events of 4 June 2009, the suspension and subsequent investigation but also resulted from events “for the years before that” (at TA6).
An examination of the transcript of submissions put to the Arbitrator reveals that Mr Heggie’s argument, being relevant to causation of injury and reasonableness of the respondent’s action, addressed circumstances dating from 3 June 2009 and thereafter, including the dismissal in December 2009. No clear argument was then advanced concerning injury caused by circumstances of employment “years before” which, as developed during the appeal hearing, suggested a “vendetta” against Mr Heggie.
Whilst it is difficult to determine the relevance of such an argument on this appeal, it is appropriate that, at the outset, those arguments should be rejected as being outside the ambit of the case as presented before the Arbitrator.
The respondent’s argument concerning causation of injury noted at [86] above does not reflect the manner in which the issue of “causation” was addressed in submissions before the Arbitrator as I have earlier attempted to summarise. At the hearing of the appeal, counsel’s attention was drawn to the views as expressed by Spigelman CJ in Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair) where his Honour was considering the term “action with respect to discipline”. His Honour stated (at [35]) “the formulation in 11A extends to the entire process involved in, relevantly, ‘discipline’, including the course of an investigation”. His Honour further stated, concerning those “actions” enumerated in s 11A (at [96]):
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”
The respondent’s contention raised on this appeal that the injury was caused by the suspension from duty alone cannot be accepted. The Arbitrator’s findings concerning the relevance of not only the suspension but the subsequent investigation are consistent with the views expressed by his Honour the Chief Justice concerning the relevance of the entiriety of various steps of a disciplinary process. Those findings are not otherwise challenged on this appeal. The respondent’s argument on this point, from which it must be said counsel appears to have resiled in later submissions (at TA49), must be rejected.

Reasonableness of the respondent’s action

The Arbitrator’s finding concerning the cause of Mr Heggie’s injury are noted at [77], [79] and [80] above. Mr Heggie submits that the Arbitrator, when considering whether the respondent’s actions were reasonable, erred in failing to take into account “relevant considerations”. The written submissions, as clarified on hearing of the appeal, enumerate those matters which Mr Heggie argues should have, but were not, taken into account by the respondent when it determined to take the relevant action (Submissions Ground 1 [1]–[20]). The argument, as ultimately advanced, was that the Arbitrator erred in failing to consider the respondent’s disregard of those matters said by Mr Heggie to be relevant.
It is also argued by Mr Heggie that the Arbitrator erred by taking into account “irrelevant matters and/or inaccurate factual characterisations [sic]” (Ground 2 [1]–[3]).
The balance of Mr Heggie’s submissions suggest failure by the Arbitrator to consider various evidentiary matters said, at the hearing of the appeal, to be relevant to the question of the reasonableness of the respondent’s action.
The respondent’s written submissions address a number of issues raised by Mr Heggie which, following the telephone conference and the hearing of the appeal, are no longer in issue. The argument advanced concerning the question of reasonableness placed reliance upon the decision in Jeffery. In that matter, it was put that Hodgson JA:
“referred to s 11A as imposing a statutory test which requires an objective assessment by the Commission of the reasonableness of the action of the employer. This must entail that the Commission look at the action taken by the employer at the time it [sic] the action is taken and determine whether, in the circumstances at that time, that action was reasonable” (at [27] of submissions).
In Jeffery, Hodgson JA agreed substantially with the reasons as expressed by Basten JA. Whilst Hodgson JA did state, as submitted, “the assessment of reasonableness is an objective one for the Commission”, there is nothing there stated by his Honour that supports the respondent’s submission that the assessment should determine the question of reasonableness by reference to the circumstances at the time the action was taken (emphasis added). The authorities make it clear that the assessment should take into account all relevant circumstances.
The question as to what circumstances are relevant to an assessment of the reasonableness or otherwise of action taken was considered by Burke J in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 (Melder). There, in the context of considering what constitutes “action” within the meaning of the section, his Honour observed that “what went before or after [the action] may be a guide to the reasonableness of the particular action but it is not part of it” (at 458). A similar approach was taken by Neilson J in Pirie v Franklins Ltd [2001] NSWCC 167; 22 NSWCCR 346 where, when accepting argument as advanced, it was stated (at [50]):
“I am not concerned with whether the retrenchment was justified or not; that I am not in a position to make the decision or unmake the decision, which the employer actually made. However, in conformity with what fell from Burke J in Melder’s case, one must have regard to the antecedent relationship of the parties to gauge the reasonableness of the process actually adopted in this case.”

The evidence reveals that the process adopted in the present case was initiated on 5 June 2009 when Mr Button was informed at 5.45 am by the Nurse Manager that “a security officer from [Mr Button’s department] had been involved in an incident in MW1, and allegations of assault had been made” (memorandum signed by Mr Button dated 11 June 2009). Mr Button, as recorded in his memorandum, then spoke to two staff members present during the incident the previous evening, following which he reported to Ms Podbury at 8.00 am.
The evidence reveals that the police attended the hospital premises at 11.00 am that morning in response to a reported assault (statement made by Senior Constable Natalie Mezgec dated 26 August 2009). At 1.30 pm that day Ms Podbury approached Mr Button “to inquire as to if [Mr Button] would be agreeable in handing a letter to Mr Heggie on his return to work on Sunday 7 June 2009” (Mr Button’s memorandum 11 June 2009). The evidence reveals that the correspondence referred to in the conversation between Ms Podbury and Mr Button was the letter notifying Mr Heggie of “serious allegations” and that he was suspended from duty on full pay. That correspondence, I note, is not in evidence.
Mr Heggie states that he was devastated by the notice concerning his suspension. The Arbitrator has determined that that occasion was the first step in the action relevant to causation of the subject injury and that the subsequent inquiry was also causative. Each step was found to be action with respect to discipline.
It may be seen that the fundamental decisions concerning action to be taken in response to the reported assault were made by Ms Podbury within a period of hours on 5 June 2009. There is no evidence before the Commission from Ms Podbury other than correspondence of which she was author. The evidence presented before the Industrial Relations Commission, relied upon in these proceedings by the respondent, does not include any statement made by her. It is Mr Crawford’s evidence that Ms Podbury is no longer employed by the respondent.
The Arbitrator has, at [60] of Reasons, enumerated the “factors” which he considered to be relevant to the question as to whether the actions (suspension and investigation) were reasonable. Those factors were:
“(a) There was a serious and violent incident involving the applicant and a patient.

(b)     The patient sustained injury.
(c)     A number of complaints were made by nursing staff about the applicant’s conduct, which if proven would establish serious misconduct.
(d)     The applicant was suspended on full pay pending an investigation.
(e)     Due to the nature of the allegations the employer was obliged to report the incident to the police for investigation.
(f)      The employer deferred investigation until after the police investigation had concluded.
(g)     The applicant was advised about the process and informed about the course of action being taken by the employer.”

The respondent argues that the matters addressed by the Arbitrator as summarised by him demonstrate that he has considered all matters relevant to the issue of reasonableness. It is Mr Heggie’s argument that the summary of matters considered by the Arbitrator demonstrates his error in disregarding the respondent’s failure to consider relevant matters. That the Arbitrator’s finding as to reasonableness is one of fact is clear (Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57).
Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 which decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong. Such error may be established by showing that, as stated by Barwick CJ (at 506):
“material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge it so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The first matter which Mr Heggie argues was, wrongly, not taken into account by the Arbitrator was that the respondent had failed to take into account those circumstances prevailing on 4 June 2009 and Mr Heggie’s experiences at the emergency department on 3 June 2009. That the respondent had failed to take into account the circumstances on 3 June 2009 is established by the evidence in the respondent’s case being Ms Podbury’s correspondence to Mr Heggie dated 3 December 2009 where it was stated:
“I do not support your claim that a past incident involving this patient within the emergency department of the Tweed Hospital has direct relevance to the investigation process and outcomes determined regarding the incident which occurred on 4 June 2009 in the medical ward of the Tweed Hospital”.
That correspondence from Ms Podbury responds to Mr Heggie’s correspondence dated 23 November 2009 where he reiterates matters concerning the management of the patient on 3 and 4 June 2009. Those circumstances had much earlier been outlined by Mr Heggie in correspondence to Ms Podbury dated 11 June 2009.
The respondent’s response to this argument as found in written submissions (at [22]) makes reference to the Arbitrator’s determination at [30] of Reasons where he acknowledged that it was “plausible” that Mr Heggie would have become anxious concerning those events on the consecutive nights. It is argued that such matters were taken into account by the Arbitrator. The problem with that argument is that the Arbitrator’s observations are directed to the question as to whether those circumstances were to be taken into account concerning “causation” of the subject injury. The confusion which has arisen is no doubt related to the manner in which Mr Heggie’s written submissions were presented. However, matters were clarified at the hearing at which time the respondent correctly argued that the Arbitrator’s task concerning reasonableness is defined by that which was stated by Geraghty J in Irwin v Director General of School Education (unreported 18 June 1998):
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
Reliance was placed by counsel upon the decision of Rothman J in Downe v Sydney West Area Health Service (No.2) [2008] NSWSC 159; 71 NSWLR 633 where, in the context of a dispute concerning an employer’s right to indefinitely suspend a worker’s performance of work and a consideration of the commission or otherwise of a breach of contract, his Honour stated (at [414]):
“As a consequence of the foregoing, I conclude that it is a concomitant of one or other of the aforesaid implied duties that an employer has the right to direct [an employee] not to perform work for a closed period during the course of an investigation into allegations of misconduct. Assuming that the duty is exercised in good faith, such a direction not to perform work is not a breach of a contract of employment. It is unnecessary and unwise to express a view as to other circumstances in which such a direction may be appropriate.”
I do not accept that his Honour’s observations have any relevance to the issue of “reasonableness” as is presently being considered.
It was at this point in argument that emphasis was placed by counsel upon the question of causation of the injury which I have addressed at [91] above, which argument has earlier been rejected.
Attention was then given to the question as to “whether the investigation was flawed”. Counsel’s analysis of the facts concerning the investigation included the submission (at TA47) that “no error is shown” given the circumstance that:
“[the respondent] had an investigation report. It had an investigation report which may have been flawed but you see what the Arbitrator has pointed out and pointed out accurately, is the critical thing that the employer had before it was the statements of five eyewitnesses to the event of the 4^th of June 2009. And what the Arbitrator had to do was to say, well, with those four statements – forget the investigation report, if I might put it that way. With those five statements what choice does the employer have? Alternatively what unreasonableness is there about the course which Mr Button took and the Arbitrator found that Mr Button and the employer, through Mr Button, did not act unreasonably.”
Counsel later in submissions argued that Mr Button’s action on 7 June 2009 “could not be criticised”. It was further put that the Arbitrator was correct to conclude that the action was reasonable. It was suggested that at that time “[the respondent] had before it the statements of Shirley Clarke and Nicole Dicker and Ms Taylor and Ms Cason and it could not ignore those”. Counsel proceeded to quote passages from statements made by hospital staff (at TA50 and following).
It was further argued that, if it is established that the Arbitrator failed to take into consideration any “shortcomings” in the investigation process, such failure would not “undermine the clear reasoning of the Arbitrator in disclosing the basis upon which he considered [the respondent’s] actions to be reasonable. Don’t [sic] need to be perfect, they just need to be reasonable” (at TA58).
I accept as correct the respondent’s submission that its conduct need not be proven to be perfect. As was stated by his Honour the Chief Justice in Sinclair (at [97]) “[i]n my opinion, the course of conduct may still be ‘reasonable action’, even if particular steps are not”.
I have formed the view that there were a number of relevant matters not taken into account by the respondent when the decision concerning disciplinary action was taken, and further, that the Arbitrator has failed to take those omissions into account when determining the question of the reasonableness of such action. It is proposed to address those matters, following which consideration may be given to the question as to whether any relevant error on the part of the Arbitrator has been demonstrated and whether such has affected his decision.
As I have earlier mentioned, the critical decisions concerning suspension and investigation were made by Ms Podbury on 5 June 2009. Whilst no argument has been advanced by Mr Heggie seeking to draw an adverse inference from the respondent’s failure to call Ms Podbury in evidence (Jones v Dunkel [1959] HCA 8; 101 CLR 298), much criticism has been advanced by him concerning the respondent’s failure to take into account events which occurred on 3 June 2009 and, in particular, the clinical history of the patient during the period immediately before 4 June 2009.
I am of the opinion that a proper assessment of events which occurred on 4 June 2009 required careful and objective analysis of all prevailing circumstances which include the following matters:
(a)     the known violent propensity of the patient;
(b)     her history of violent behaviour;
(c)     the extreme and distressing circumstances created by the patient’s conduct at the time of admission on 3 June 2009 and thereafter;
(d)     the difficulties encountered and injuries received by Mr Matheson when managing the patient before Mr Heggie presented at work on 4 June 2009;
(e)     that Mr Heggie was summoned to the medical ward without explanation or warning concerning the circumstances;
(f)      failure in those circumstances to ensure that relevant security protocols were observed, and
(g)     failure to comply with procedures concerning the activation of duress alarms at the time it was perceived by staff that security assistance with the patient was required.
It was Ms Podbury who determined that matters earlier than the incident of 4 June 2009 were not relevant to her decision concerning the disciplinary action. In the absence of evidence from her it is not known what matters were, in fact, taken into account by her at the time suspension and investigation was decided upon. All that is known is that Mr Button spoke with Ms Clarke and Ms Dicker around 6 am on 5 June 2009, although it is unknown what “version of events” was relayed; and that he then reported to Ms Podbury at 8am (Mr Button’s memorandum dated 11 June 2009).
I reject the respondent’s submissions summarised at [108] above concerning the respondent’s reliance upon the witness statements. At the relevant time, that is 5 June 2009, Ms Podbury could not have relied upon those statements referred to by counsel as none had, at that time, come into existence. The police, on 5 June 2009, had not interviewed any witness to the relevant events. It is not known whether Ms Podbury had spoken to any person who had witnessed the event, including the patient, before the relevant action was initiated.
I also conclude that there were deficiencies in the conduct of the inquiry which should have been, but were not, taken into account by the Arbitrator. There is no evidence to suggest that the respondent at any time during the conduct of the investigation had considered the relevance or otherwise of information that Mr Heggie believed could be provided by Ms Cooper and Mr Carlson.
I have concluded that the matters summarised above were relevant and should have been taken into account by the respondent and its investigators given the plain statement found in the PMVA manual noted at [42] above that “at times a staff member’s duty of care to a client may justify the use of detainment, restraint or sedation”. It was Mr Heggie’s assertion that he was, as required by prevailing circumstances, attempting to restrain the patient for her protection and that of staff.
The onus as earlier noted, is upon the employer to establish the reasonableness of its action. The absence of evidence from Ms Podbury leaves many questions unanswered concerning what, if any, consideration was given to matters which I have concluded should have been taken into account before institution of the disciplinary action.
It was made clear at the hearing of the appeal that complaint is made that the Arbitrator had given no consideration to the fairness of the respondent’s action or its consequences (at TA34 and TA37). That the consequences of the respondent’s action are matters relevant to an assessment of reasonableness is clear. As was stated by Armitage J in Ritchie v Department of Community Services [1998] NSWCC 40; 16 NSWCCR 727 (at [41]) “[I]t is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent’s conduct against the reasons given for it, and I have done so.” (emphasis added)
The Arbitrator, at [39] of Reasons has recorded some of the consequences of the respondent’s action experienced by Mr Heggie. Those consequences were considered by him in the context of “causation” of injury as noted at [78] above. The Arbitrator does not appear to have taken those matters into account when considering the reasonableness of the respondent’s response to the incident. Those consequences, for Mr Heggie, were dire. They include:
(a)     loss of his security licence;
(b)     termination of his employment and a blemish on his employment record with the health service;
(c)     a ban preventing his registration as a qualified nurse until acquittal;
(d)     prosecution by the police which became protracted for 22 months which proceedings occupied three days before the Court and concluded with an acquittal, and
(e)     his incurring very substantial legal costs.
It was argued that the principal reason for the respondent’s action was that it was obliged to act as it did. It seems that the obligation is said to arise from the terms of the respondent’s Policy Directive (PD2005-225) where, at page 11 under the heading “Allegations/incidents patient/client abuse”, it is stated that allegations of patient abuse are to be reported to, among others, the NSW Police service, staff records management unit, Department of Health and the relevant professional registration board.
There can be no doubt that in clear and unequivocal circumstances of an assault upon a patient there should be immediate compliance with the Policy Directive. The circumstances of Ms Clarke’s assertion made to Mr Button that there had been an assault required a proper exercise of judgment and assessment of facts and circumstances to be made by Ms Podbury before the actions of suspension and investigation were instituted. As I have had occasion to observe in circumstances similar to the present (The Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98), the fact that protocol and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable. Proper exercise of judgment and assessment of relevant matters must be made by those responsible to determine the threshold question as to whether such action is required. Any subsequent action must, if a defence is to be made out, be reasonable. The Arbitrator has not, when determining the question of reasonableness, addressed the shortcomings which I have attempted to summarise.
Having considered the totality of the evidence I am of the opinion that the Arbitrator’s conclusion that the actions of the respondent were reasonable was wrong.
My view is that, in the absence of Ms Podbury’s evidence, the respondent has failed to establish on the probabilities that the action taken was reasonable. I have also taken into account those matters which have been raised in argument concerning the investigation process itself. The report by Mr Barrow does not in any manner reveal the reasoning process which led him, and presumably Ms Bernard, to the conclusion that the charges against Mr Heggie had been substantiated. The report does no more than recite those matters taken into account. Nothing found in that report or its appendices demonstrates the manner of evaluation of the material said to have been considered. Whilst it is correct as recorded in the report that Mr Heggie did not, on advice, participate in an interview, the investigators had Mr Heggie’s correspondence and the patient’s clinical record. Nowhere in that report is there any reasoning disclosed as to the relevance of that record or the probity of matters stated by Mr Heggie.
For the reasons which I have attempted to summarise above I conclude that the Arbitrator’s error in determining the factual issue of reasonableness of the respondent’s action has affected his decision and his determination must be revoked on this appeal.
In the circumstances I consider it appropriate, and in accordance with legislative intent, to make a new decision in place of that of the Arbitrator.
The respondent has fairly and properly conceded that, should Mr Heggie establish entitlement to an award, such award would provide for weekly compensation in respect of total incapacity from 24 December 2009 to the date he resumed employment as a registered nurse on 15 April 2011. The respondent disputes any entitlement to weekly compensation thereafter.
Mr Heggie claims entitlement to an award in respect to partial incapacity from 24 December 2009 to date and continuing. As indicated during submissions at the hearing of the appeal, I am not satisfied that the evidence supports such an award. Whilst it is correct that Dr Huntsman suggests Mr Heggie should not return to work as a security officer, his successful resumption of employment in his chosen profession demonstrates his capacity for full-time work since 15 April 2011. Nor was any evidence submitted to the contrary.
I find on this appeal that as a result of psychiatric injury received by Mr Heggie on and after 7 June 2009 he was totally incapacitated for work from that date to 14 April 2011. He received payment of wages from the respondent up to 23 December 2009. It appears that wages paid by the respondent were in respect of a period exceeding the six months period provided by s 36 of the 1987 Act. Thus Mr Heggie’s entitlement is in respect of the maximum statutory rate for a single worker from 24 December 2009 to 14 April 2011 pursuant to s 37. He is entitled to an award in respect of hospital and medical expenses (s 60).

DECISION

The determination of the Arbitrator made in the Certificate of Determination dated 13 September 2011 is revoked, and the following orders are made in its place:
“ 1. Award for the applicant in respect of weekly compensation at the rate of $396.10 per week as adjusted from 24 December 2009 to 14 April 2011 pursuant to s 37 of the Workers Compensation Act 1987.
2. The respondent is to pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts and/or receipts.

3. Respondent is to pay the applicant’s costs.”

COSTS

The respondent is to pay Mr Heggie’s costs of the appeal.

Kevin O'Grady

Deputy President
28 February 2012

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE