Kathleen Herrmahn v the Nurses Board of South Australia and Elizabeth Claire Percival No. 4216 Judgment No. SCGRG 93/2 Number of Pages 4 Administrative Law (1993) 61 Sasr 325

[1993] SASC 4216

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2), BOLLEN(3), OLSSON(4) AND DEBELLE(5) JJ

CWDS
Administrative law - statutory appeals from administrative authorities to courts - Nurses Board - appeal against finding of unprofessional conduct - reversal of finding based on credibility - flawed appreciation of relevant factors and unsound process of reasoning - onus of proof. Nurses Act 1984 s.41.

HRNG ADELAIDE, 2 August 1993 #DATE 28:10:1993
Counsel for appellant:     Mr D M Quick QC with
   Mr G A Britton
Solicitors for appellant:    Mason Westover and Rowe
Counsel for respondent:     Mr J J Doyle QC with
   Ms J G Olsson
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against the finding of the Nurses Board of South Australia whereby the appellant was found guilty of unprofessional conduct and reprimanded. The appeal was referred to the Full Court by a single judge. 2. The Registrar of the Nurses Board made the complaint upon which the Board adjudicated pursuant to s.41 of the Nurses Act. It alleged that the appellant, who was employed as a Registered Nurse and Registered Midwife at the Bordertown Memorial Hospital, assaulted a patient at that hospital on 16 November 1991. 3. An enrolled nurse also employed at the hospital, Jeanine Gum, gave evidence that at the material time patients were being taken from their rooms to the dining-room. The appellant was in the room of an elderly male patient by the name of Dungey for that purpose. Ms Gum was walking past the open doorway and looked into the room. She saw the appellant standing near the middle of the bed with Dungey in front of her. She had her left arm around the front of him apparently supporting him. She told him in a firm tone to stand up straight. He was toppling a little bit to the side. The appellant struck him two blows to the ear with a closed fist. Ms Gum went into the room and assisted the appellant to get Mr Dungey to the dining-room. She said nothing at the time to the appellant but shortly afterwards told another enrolled nurse, Christine Jarman, of the incident and then made a complaint to the matron Beryl Watson. Christine Jarman and Beryl Watson gave evidence of what Ms Gum said to them and of their observations of her displaying signs of emotional distress. 4. The appellant gave evidence that she was assisting Mr Dungey to stand and was attempting to remove the feeder from around his neck. She denied striking him. 5. The Board, in its written reasons for its decision, preferred the evidence of Ms Gum to that of the appellant and based the finding upon Ms Gum's evidence. The Board appears to have based preference for Ms Gum's evidence over that of the appellant at least in part upon the support which they considered it derived from the evidence of Christine Jarman and Beryl Watson. The Board said:
    "Their evidence supported Ms Gum for two reasons. First the
    details of Mr Dungey's assault told to them by Ms Gum at the
    time is consistent with both each others evidence and with Ms
    Gum's current testimony. Second, they both witnessed emotional
    distress in Ms Gum, consistent with her having been distressed
    by seeing a senior colleague assault a patient." 6. This was a difficult case for the Board. The need to support Mr Dungey obviously required some physical contact and handling. The incident which Ms Gum believes she observed was a fleeting incident and her opportunities for observation were necessarily limited. There was a real risk of mistaken observation. 7. The Board was in error in its view that Ms Gum's evidence derived support from the other two witnesses. There was no suggestion of recent invention and the statements made to the other two witnesses would not have been admissible in a court of law. The Board is not bound by the rules of evidence but, in my opinion, the evidence of those witnesses possesses no probative force. It is true that the making of an early report is consistent with Ms Gum having observed an assault. It is equally consistent, however, with mistaken observation or even deliberately false accusation. If she believed that the appellant had committed the assault as a result of mistaken observation, she would be equally likely to make an early report. If she had made up her mind out of malice to make a false accusation against the appellant she would also make a report and be likely to claim that the incident had just occurred. 8. This Court, sitting as an appellant tribunal, must exercise restraint when considering an appeal against a finding by a tribunal based upon that tribunal's assessment of the credibility of witnesses. Where, however, the reasons given by the tribunal disclose that it has been influenced in its assessment of the witnesses by a flawed appreciation of the relevant factors and by an unsound process of reasoning, it is proper for the court to interfere. I have reached the conclusion that the Board's mistaken view that Ms Gum's evidence derived support from the evidence of the other two witnesses, has vitiated the finding that the appellant committed the assault. 9. I have reached the conclusion that, excluding the irrelevant factors from consideration, it would be unsafe, in all the circumstances of the case, to base a finding that the appellant committed the assaults upon the unsupported evidence of Ms Gum. 10. In my opinion therefore the appeal should be allowed and the finding of unprofessional conduct and the consequent reprimand set aside. 11. The appeal was referred to the Full Court and a Court consisting of five judges was convened in order to consider the question of the appropriate standard of proof required in a charge of unprofessional conduct under the Nurses Act and under analogous legislation with respect to other professions. This was done because of differences of opinion which have been expressed by judges of this Court as to whether the civil or criminal onus applies in such cases. The Board in this case adopted the civil onus of proof as it applies to the proof of serious allegation; Briginshaw v Briginshaw (1938) 60 CLR 336, Neat Holdings Pty Ltd v Karajan Holding Pty Ltd and Ors (1992) 110 ALR 449, Rejfek v McElroy (1964-65) 112 CLR 517. I have dealt with the appeal on that basis. In the result it is unnecessary to consider whether the appropriate onus of proof was applied. It is undesirable that an attempt should be made to settle the question when it is unnecessary for the decision of the case. In the recent case of Bannister v Walton (unreported 4/6/93) the New South Wales Court of Appeal has held that the civil onus of proof applies in professional disciplinary proceedings. I understand that there is pending an application for leave to appeal to the High Court. It may be that the question will be settled by a judgment of the High Court in that case. If that does not occur the question will have to be settled for South Australia by a five judge Court in some future case. I appreciate that the state of uncertainty as to the appropriate standard of proof is unsatisfactory from the point of view of the tribunals which are dealing with disciplinary proceedings but for the reasons which I have mentioned, the present case is not an appropriate vehicle for the resolution of the question.

JUDGE2 MOHR J I agree with the Chief Justice.

JUDGE3 BOLLEN J I agree with the Chief Justice.

JUDGE4 OLSSON J I agree both with the reasoning of the Chief Justice and the conclusion to which he has come. I would merely desire to add a few brief additional observations. 2. This case exhibits, perhaps in lesser degree, some of the same characteristics as arose in B and Anor v The Minister For Family and Community Services (1992) 166 LSJS 414, a case which related to a situation in which the Children's Court was also not bound by the strict rules of evidence. I entirely agree with the Chief Justice when he stresses that the fact that a court or tribunal is absolved from adhering to the rules of evidence does not confer upon it a licence to act upon the basis of evidentiary material which, as a matter of logic, is either irrelevant to issues to be decided or, alternatively, has no probative value or force. 3. In my view the reasoning of the tribunal in this case was irretrievably flawed by breaching that basic proposition.

JUDGE5 DEBELLE J I agree with the reasons of the Chief Justice and the order he proposes.