Hughes v South Western Sydney Local Health District

[2020] NSWDC 557

District Court

New South Wales

Medium Neutral Citation:

Hughes v South Western Sydney Local Health District [2020] NSWDC 557

Hearing dates:

6 March, 1 May, 12 & 26 June 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [39] for orders.

Catchwords:

PRACTICE & PROCEDURE – work injury damages claim by nurse seriously assaulted by adolescent patient in a mental health facility – application pursuant to UCPR r 2.1 and r 23.8 by plaintiff for inspection of premises by expert witness to enable preparation of expert opinion on safety issues – application by plaintiff pursuant to s 318 of Workplace Injury Management and Workers Compensation Act 1998 to rely on expert evidence not served with pre-filing statement

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56 – s 59

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Uniform Civil Procedure Rules 2005, r 2.1, r 23.8, r 42.1

Work Health and Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW), s 151D

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318

Category:

Procedural and other rulings

Parties:

Kirsty Hughes (Plaintiff)
South Western Sydney Local Health District (Defendant)

Representation:

Counsel:
Mr M McAuley (Plaintiff)
Mr D Stanton (1 May) (Defendant)
Mr L Sandars (Solicitor) (6 March, 12 June)
Mr E O’Neill (26 June)

Solicitors:
Paul A Curtis & Co (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2018/371811

Publication restriction:

A non-publication order has been made with respect to the name of the patient referred to in the evidence as Patient M

Judgment

1. These reasons concern a series of inter-related interlocutory applications that have arisen in work injury damages proceedings brought by the plaintiff, Ms Kirsty Hughes, a mental health nurse, after she was seriously assaulted and injured by a patient in her care at her workplace, in the course of her employment at a mental health facility operated by the defendant, South Western Sydney Local Health District.

Interlocutory applications

2. The plaintiff filed her first notice of motion on 18 July 2019, whereby she sought leave, pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”), to rely upon a report dated 18 March 2019 from Dr Christopher Canaris, a consultant psychiatrist. That motion was heard and determined in favour of the plaintiff on 23 August 2019 for reasons delivered ex tempore at that time.

3. A subsequent notice of motion was filed by the plaintiff on 16 April 2020 by which, she sought to enforce answers from the defendant to a request for particulars concerning aspects of the pleaded defence. The plaintiff has subsequently abandoned that motion.

4. In the mix of those matters, three residual interlocutory issues have been identified as requiring determination.

5. The first residual issue concerned the question of whether or not the plaintiff should be granted leave, pursuant to s 151D of the Workers Compensation Act 1987 (NSW), to maintain these proceedings which were filed out of time. By an earlier order of the Judicial Registrar, that issue was left to be determined by the trial judge. The parties are content to leave that order undisturbed. Consequently, I do not need to determine that question.

6. The second residual issue concerned the plaintiff’s request for inspection access to the defendant’s premises where the plaintiff was working when she was assaulted. That issue was the subject of the notice of motion filed by the plaintiff on 28 November 2019. By that motion, pursuant to UCPR r 2.1 and r 23.8, and s 56 – s 59 of the Civil Procedure Act 2005 (NSW) (“CP Act”), the plaintiff sought orders that would permit her legal representatives, and an expert psychiatrist retained on her behalf, Dr Canaris, to enter and inspect the patient care facilities at the GNA Kun Lun (Youth Mental Health) Unit and the Waratah (Adult Mental Health) Unit at Campbelltown Hospital in Western Sydney. The defendant initially opposed that relief.

7. The hearing to determine that residual issue was scheduled to take place during a period of COVID-19 restrictions. Those circumstances prevented the matter from progressing and as a result there was an unavoidable consequential delay. During that period of delay, the parties fortunately reached a satisfactory agreement on the principal interlocutory relief sought concerning the terms on which access to, and inspection of, the defendant’s premises could be facilitated for the plaintiff’s expert witness.

8. A third residual issue arose in the course of consequential directions hearings. This concerned the emergent question of whether, pursuant to s 318 of the WIM Act, the plaintiff should be granted leave to rely upon additional expert evidence from Dr Canaris in the form of his report dated 26 September 2019 which had been prepared in the interim. That particular aspect of Dr Canaris’ evidence is directed to the issue of whether or not there has been a breach of duty of care the defendant owed to the plaintiff.

9. Dr Canaris’ opinion necessarily remains incomplete without the results of inspection of the defendant’s premises and his consideration of the defendant’s system of managing patients with a propensity to violent behaviour. That inspection and that consideration had not yet occurred at the time this application was heard.

Non-publication order

10. Pursuant to s 7 and s 8(1)(a), (b) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), an order has been made prohibiting the publication of the name of the patient who assaulted the plaintiff. That patient is referred to in these reasons as Patient M.

Factual background

11. In the early hours of Saturday, 18 October 2014, whilst the plaintiff was working at the defendant’s premises on a night shift that commenced the previous evening, she was accosted, assaulted, and seriously injured by Patient M, a female adolescent in-patient aged 15 years.

12. Patient M was afflicted with a genetic disorder known as Smith Magenis Syndrome, the effect of which required that she be cared for by means of special nursing arrangements, also referred to in the evidence as specialling. This was because Patient M was, without exhibiting warning signs, prone to initiate violent attacks on those around her.

13. Nursing care of such a patient by specialling involved the allocation of sufficient nursing staff. One of the aims of such a measure was to seek to avoid foreseeable injury to staff and to other patients on account of Patient M’s propensity to exhibit violent behaviours.

14. The plaintiff claims that the injuries she received in the assault by Patient M have left her with significant disabilities which have prevented her from working. She claims that her injury occurred due to the negligence of her employer concerning the prevailing care arrangements in place for patients such as, and including Patient M, who had a known propensity for violence, and who were in need of pre-planned rostered special nursing.

Evidence

15. The parties prepared a Joint Court Book (pp 1 – 349) along with four associated Volumes A, B, C and D (pp 1 – 2177).

16. The plaintiff relied on the following affidavits:

1. Affidavit of Paul Curtis dated 11 February 2019;

2. Affidavit of Kirsty Hughes dated 18 February 2019;

3. Affidavit of Paul Curtis dated 19 February 2019;

4. Affidavit of Paul Curtis dated 14 March 2019;

5. Affidavit of Paul Curtis dated 18 July 2019;

6. Affidavit of Paul Curtis dated 29 November 2019;

7. Affidavit of Paul Curtis dated 15 April 2020.

17. The defendant relied on the following affidavits:

1. Affidavit of Ivan Medak dated 6 September 2019;

2. Affidavit of Rajeev Jairam dated 24 April 2020.

18. Following discussions between the parties which led to the resolution of a number of matters in dispute, it is not necessary to refer in detail to the content of those affidavits and the documents.

Legislation

19. UCPR r 2.1 provides:

2.1 Directions and orders

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

20. UCPR r 23.8 provides:

23.8 Inspection of property

(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following—

(a) the inspection of any property,

(b) the taking of samples of any property,

(c) the making of any observation of any property,

(d) the trying of any experiment on or with any property,

(e) the observation of any process.

(2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection).

(6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.

21. Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides:

318 Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages—

(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that—

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party’s case.

(3) The regulations may provide for exceptions to this section.

22. The effect of s 56 – s 59 of the CP Act is that the parties are required to proceed in an expeditious manner that facilitates a just, quick and cheap resolution of the real matters in dispute between them.

Residual issue of leave pursuant to s 318 of the WIM Act

23. As the defendant has now conceded, on agreed terms and conditions, that the plaintiff’s expert, Dr Canaris, should be permitted to view the mental health facility where the plaintiff was injured in the course of her employment, it follows that a further report from Dr Canaris is anticipated.

24. Owing to the nature of the layout of the premises, and on account of the fact that mentally disturbed adolescent patients require privacy and may be adversely affected by the intrusion of an expert inspection, as well as the need to observe COVID-19 precautions, it has been agreed between the parties that such inspection should be by way of a “walk-through” video-recording undertaken by an agreed person so that relevant material may then be made available for Dr Canaris’ consideration.

25. The report of Dr Canaris dated 26 September 2019, in respect of which leave is sought by the plaintiff, relates to liability issues. It is obviously a precursor to an anticipated further report to be obtained from him following his inspection of the premises and related matters to which the defendant has now agreed on the terms that have been finalised as between the parties.

26. When Dr Canaris has concluded his consideration he should prepare a stand-alone report that states his views in a single report rather than leaving his opinions to reside in a series of cumulative reports: UCPR r 31.20(j).

27. Plainly, before the commencement of the proceedings, the plaintiff was not in a position to have arranged for Dr Canaris to inspect the premises, including before the timing of the service of her pre-filing statement. She did not herself have the insight that indicated the need for such a report. This was also in large part due to the severity of her injury-related psychological difficulties.

28. As was the case concerning the grant of leave pursuant to s 318 of the WIM Act on 23 August 2019 for reliance on the report of Dr Canaris dated 18 March 2019, the plaintiff must in this instance show first, that the intended further evidence was not reasonably available to her when her pre-filing statement was served, and secondly, whether a grant of the leave sought would substantially prejudice the defendant in its defence of the proceedings.

29. Essentially, the defendant submitted that the material which concerned the plaintiff’s present application for leave to rely upon the 26 September 2019 opinion of Dr Canaris was reasonably available prior to the service of her pre-filing statement and therefore, leave should not be granted.

30. It is convenient to test that submission against the history of the defendant’s steadfast resistance to the plaintiff’s application pursuant to UCPR r 2.1 and r 23.8 by which she sought inspection of the premises.

31. The defendant’s resistance to that application only fell away after the plaintiff had built a compelling case which justified such access in circumstances where a procedural interlocutory order for such access could be sought and obtained by order of the Court if not by consent, unlike the circumstances which prevailed prior to the commencement of litigation. Therefore, I do not accept the defendant’s submission. In my view, the evidence from Dr Canaris, and that which based that opinion was not reasonably available to the plaintiff before the issue of her pre-filing statement.

32. I am satisfied that in this instance, if a grant of the leave sought by the plaintiff was refused, this would cause substantial prejudice to the plaintiff’s case. This is because for cogent expert evidence to be obtained on workplace safety matters, and concerning the management and care of potentially violent patients, a proper factual foundation is required. For that reason, a properly informed expert opinion should be seen as being an essential pre-requisite. A refusal of the plaintiff’s request would most likely cause a substantial injustice to the plaintiff because it would deprive her of an expert opinion to support her case.

33. Procedural orders must be made according to the dictates of justice: s 58 of the CP Act. In considering the dictates of justice, I see no reasonable basis for concluding that the defendant would be materially prejudiced by the grant of the leave now sought by the plaintiff. The defendant, a health authority, must be assumed to have adequate resources at its disposal to meet such a circumstance in the litigation.

34. Furthermore, it is important that the entire array of Dr Canaris’ expert opinions be placed before the Court for consideration, not just a select few.

35. The plaintiff’s pleaded case relies on allegations of failure to take adequate care for her safety, including failure to provide special care for Patient M. The plaintiff has also pleaded a case that refers to alleged failures on the part of her employer to comply with provisions of the Work Health and Safety Act 2011 (NSW) and related regulations.

36. This case raises an important question as to the extent to which reasonable care is required to address the risk of violent injury to patients and staff in a mental health facility rather than regarding such risk as being a normalised occurrence.

37. The plaintiff has been left with a major and severe chronic depressive disorder and a post-traumatic stress disorder. Her evidentiary statement describes that condition and its effect in detail. At the time she commenced these proceedings neither she nor her solicitors could have reasonably known that an expert opinion to support her case would be required to be based on an inspection of the premises. She requires leave for that expert opinion to be used in the proceedings: s 318(2) of the WIM Act 1998. The above circumstances lead me to conclude that the plaintiff has made good her application for leave pursuant to that section of the Act.

Costs

38. I consider that the appropriate order for costs in relation to determining the above issues is that since the plaintiff has been successful on the issues that were contested, the defendant should bear the costs of determining those matters: UCPR r 42.1.

Orders

39. I make the following orders:

1. Pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998, the plaintiff is granted leave to rely upon the report from Dr Canaris dated 26 September 2019;

2. The defendant is to pay the plaintiff’s costs of determining the issues in the interlocutory applications which are the subject of these reasons;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 25 September 2020