McMurtrie v The Quadriplegic Centre Board of Management
[2008] WADC 170
•25 NOVEMBER 2008
McMURTRIE -v- THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT [2008] WADC 170
| Link to Appeal : | [2009] WASCA 173 [2009] WASCA 173 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 170 | |
| Case No: | CIV:2424/2005 | 4-8 AUGUST 2008 | |
| Coram: | SLEIGHT DCJ | 24/11/08 | |
| PERTH | |||
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim allowed reduced by 20% for contributory negligence | ||
| PDF Version |
| Parties: | KAREN McMURTRIE THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT |
Catchwords: | Duty of care of employer Nurse's assistant injured avoiding patient's arm movement Prior aggressive behaviour of patient Duty of employer to control resident Duty of employer to warn employee of prior aggressive behaviour of resident Whether injury caused by breach Contributory negligence |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 |
Case References: | Amaca Pty Ltd v Hannell (2007) 34 WAR 109 Bankstown Foundry Pty Ltd v Braistina (1985-6) 160 CLR 301 Bennett v Minister for Community Welfare (1992) 176 CLR 408 City of Stirling v Tremeer (2006) 32 WAR 155 Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Keeys v State of Queensland [1998] 2 Qd R 36 Leeder v The State of Western Australia [2008] WASCA 192 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1984) 155 CLR 306 Morton v William Dixon Ltd [1909] SC 807 New South Wales v Fahy [2007] HCA 20 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42 Sheather v Country Energy [2007] NSWCA 179 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT
Defendant
Catchwords:
Duty of care of employer - Nurse's assistant injured avoiding patient's arm movement - Prior aggressive behaviour of patient - Duty of employer to control resident - Duty of employer to warn employee of prior aggressive behaviour of resident - Whether injury caused by breach - Contributory negligence
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
(Page 2)
Result:
Plaintiff's claim allowed reduced by 20% for contributory negligence
Representation:
Counsel:
Plaintiff : Mr J Johnson
Defendant : Mr D M G Burton
Solicitors:
Plaintiff : Julian Johnson Lawyers
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bankstown Foundry Pty Ltd v Braistina (1985-6) 160 CLR 301
Bennett v Minister for Community Welfare (1992) 176 CLR 408
City of Stirling v Tremeer (2006) 32 WAR 155
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Keeys v State of Queensland [1998] 2 Qd R 36
Leeder v The State of Western Australia [2008] WASCA 192
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Morton v William Dixon Ltd [1909] SC 807
New South Wales v Fahy [2007] HCA 20
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42
Sheather v Country Energy [2007] NSWCA 179
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 SLEIGHT DCJ: The plaintiff, Ms McMurtrie, was on 26 May 2001 employed by the defendant as a nurse's assistant at the Quadriplegic Centre (the Quad Centre). At approximately 2.00 am on the morning of 24 May 2001, she and another nurse's assistant entered the room of a resident (Mr RJ) to turn him over in his bed, a process undertaken to prevent bed sores. It was believed by Ms McMurtrie that at the time Mr RJ was asleep. Ms McMurtrie and the other nurse's assistant positioned themselves on opposite sides of the bed. The resident Mr RJ was lying on his right side with pillows behind his back. The pillows were removed which caused him to roll onto his back. Ms McMurtrie was situated on the right side of Mr RJ. She bent forward over Mr RJ’s bed to untuck a draw sheet which extended under him and is used to move the resident's position on the bed. Ms McMurtrie claims that as she did so Mr RJ swore at her and lashed out with his right arm towards her face. Ms McMurtrie says that to avoid being struck she jerked upwards and backwards and in doing so injured her spine.
Pleadings of negligence
2 The plaintiff pleads as follows:
"3. There were implied terms of the Plaintiff's contract of employment referred to in paragraph 2.3 herein and/or it was the duty of the Defendant and/or the Defendant was under a statutory duty pursuant to section 19 and/or 22 of the Occupational Safety and Health Act 1987 ('the OS&H Act'), so far as practicable, inter alia -
3.1. to provide and maintain for the Plaintiff a system of work such that she would not be exposed to anything which might result in injury or harm to her health;
3.2. not to expose the Plaintiff to any risk of damage or injury of which it knew or ought to have known;
3.3. to provide information, instruction and training to the Plaintiff to enable her to perform her work without being exposed to anything which might result in injury or harm her health.
(Page 4)
- 4. Prior to 24 May 2001 ('the material date'), as the Defendant knew or ought to have known at all material times:
4.1. on at least 2 occasions, RJ had acted aggressively towards members of the Defendant's staff, seeking to strike out at them, whilst in the course of their work, caring for him;
Particulars of Aggression against Staff
4.1.1. In or about October 2000 RJ slapped a male nurse employed at The Quad Centre;
4.1.2. In or about April 2001 a member of the Defendant's staff at The Quad Centre, Diana Wynn was also struck by RJ;
4.1.3. Further particulars will be provided after interrogation.
4.2. on further regular occasions, RJ used aggressive bad language towards members of the Defendant's staff, whilst in the course of their work, caring for him;
Particulars of Aggressive Language Use against Staff
- Full particulars will be provided after interrogation.
4.3. on further occasions, RJ had acted aggressively towards other residents at The Quad Centre under the Defendant's care, seeking to strike out at them.
Particulars of Aggression towards Other Residents
- Full particulars will be provided after interrogation.
(Page 5)
- 5. On the material date:
5.1. At about 2.00 am, the Plaintiff in the course of her work for the Defendant at The Quad Centre was instructed to assist another worker in turning RJ;
5.2. Consequently the Plaintiff attended RJ's room at The Quad Centre;
5.3. As the Plaintiff sought to untuck the draw sheet beneath RJ, in order to turn him, RJ
5.3.1. swore aggressively at the Plaintiff, stating 'What the fuck are you doing, put it back';
5.3.2. hit out towards the Plaintiff's face which was to the side of the bed, given she was untucking the draw sheet.
5.4. In reaction to RJ's actions pleaded in paragraph 5.3 herein, the Plaintiff lurched backwards and thereby sustained injury ('the accident').
6. The accident was caused by the negligence and/or breach of contract of the Defendant and/or by breach of the statutory duty owed by it to the Plaintiff pleaded in paragraph 3 herein that:
6.1. It failed, despite having the knowledge or ought to having had the knowledge pleaded in paragraph 4 herein, to warn the Plaintiff on or before the material date of RJ's temperament and his past history and hence predisposition towards aggressive behaviour towards its workers;
6.2. It failed to take any or any appropriate measures to control RJ's behaviour following the events pleaded in paragraph 4 herein, to avoid their recurrence on the material date;
6.3. It failed to have in place a system for ensuring that the Plaintiff was provided background information, in the course of 'hand over' concerning the character of its residents (and any
- issues concerning such residents' that may present a danger to her health, including RJ's predisposition to aggression towards its staff), who she was obliged to care for, in the course of her work, including RJ;
- 6.4. It failed to devise and instruct the Plaintiff as to a means by which she could turn RJ on the material date without requiring her to be in close proximity to him, so as to avoid the risk that he could (as he did, as pleaded in paragraph 5 herein) threaten her physically."
3 The defendant denies the plaintiff's claim. In par 5 of the defence it pleads that the patient Mr RJ "was physically incapable of inflicting harm on any of the defendant's staff or persons in its care because he is an incomplete C5/6 tetraplegic and by reason of his medical condition generally".
4 The defendant denies the alleged knowledge in par 4 of the statement of claim and denies the alleged negligence.
5 Further, the defendant pleads that the plaintiff was guilty of contributory negligence in that she:
"8.1 ignored the Defendant's specific and repeated instructions that she was not to enter RJ's room because the Plaintiff had previously complained about RJ's rude and unpleasant behaviour towards her;
8.2 despite having knowledge of RJ's temperament and his past rude behaviour, she deliberately ignored the Defendant's instruction not to enter his room;
8.3 with full knowledge of RJ's temperament and propensity for rude or inappropriate behaviour, she failed to exercise reasonable care and caution when rendering nursing services to RJ;
8.4 given the prior knowledge of RJ's temperament and rude behaviour, she generally failed to exercise reasonable care for her own safety in all the circumstances."
(Page 7)
The central issues
6 There are a number of central issues that arise in this trial.
1. What was the scope of the defendant's duty of care in relation to controlling behaviour of Mr RJ and also warning the plaintiff, Ms McMurtrie, of prior aggressive behaviour?
2. Was the defendant in breach of this duty of care (this involves a consideration of each of the alleged grounds of negligence pleaded by the plaintiff)?
3. If the defendant was in breach of its duty of care, did the breach cause the injury to the plaintiff?
This involves a number of subsidiary issues –
(i) Was the injury to the plaintiff caused by Mr RJ deliberately trying to hit Ms McMurtrie or was he simply using his right arm to clamp down on the draw sheet to prevent it from being used?
(ii) If I find that Mr RJ was simply attempting to clamp down on the draw sheet, was this still within the scope of aggressive behaviour so that a failure to warn Ms McMurtrie or otherwise control the aggressive behaviour of Mr RJ was causative of the injury to Ms McMurtrie?
4. Was Ms McMurtrie guilty of contributory negligence in relation to her injuries?
Documents tendered by consent
7 In addition to calling oral evidence, the plaintiff tendered into evidence by consent a book of documents. This book of documents included the following:
(a) An "Accident Investigation Report" signed by Ms McMurtrie's supervisor, Registered Nurse Robin Knight. In this document the incident was described in the following terms:
"Karen was doing routine turn for 02.00 HRS. Patient usually remains asleep for turn. Pillows were gently removed and draw sheet prepared. Patient suddenly woke, and lashed out with right arm. He said 'Get the fuck out of my room'. Karen jerked back to avoid the hit
- and got a burning pain in her back which progressed to a throbbing?"
- (b) A "Nursing Care Plan" which was reviewed monthly and signed by Mr RJ annually. This Nursing Care Plan, which commenced in 1997, was amended on 1 November 2000 to provide "two persons to turn R during night at 2.00, 4.00 and 6.00".
(c) A document of the Quadriplegic Centre entitled "Integrated Progress Notes" which contained an entry as at 1 November 2000 as follows:
"0.415 hours. Chan Siharath reported that when he turned R during the night, i.e. 014 R had been displeased about having his pillows were arranged and had started to swear and talk loudly. Chan asked him to talk quieter or he would wake the other residents. Chan then alleged Ron hit him on his right shoulder. Chan left Ron's room straightaway. He was in a safe position."
These notes also contain an entry on 2 November 2000 stating that Mr RJ was to be turned by two people at night.
(d) An Incident Report which was completed on 25 June 2001 by Robin Knight. This referred to an incident reported on 21 June 2001 which is said to have occurred at 0.200 hours in approximately April 2001. This incident was described in the following terms:
"Had turned R and was in the process of adjusting his pillow under the leg and his bottle positioned when he lashed out with his right hand. There was little physical power when it connected with me. There was more force in the swearing both hurt emotionally."
(e) A written protocol instructing staff at the Quad Centre how to deal with unacceptable behaviour of a resident. The protocol included a direction that the resident be asked to desist with the unacceptable conduct and if the behaviour continued the staff member was to withdraw from the room at a convenient time.
(Page 9)
Evidence called by the plaintiff
(a) Karen Lee McMurtrie
8 The evidence of Ms McMurtrie was that she was qualified as an enrolled nurse in New Zealand in 1983. After being qualified she worked for a period of about five months in a spinal injury unit. She then took about a 14 year break from the nursing profession during which time she married and had four children. She returned to the nursing profession as a nurse's assistant in 1998 working at an aged care facility in Carrington. She commenced at the Quad Centre in March 2001.
9 Ms McMurtrie stated that at both the aged cared facility at Carrington and at the Quad Centre, she had experienced working with physically and verbally aggressive patients. She said the way she dealt with these sort of patients was to keep a safe distance from them. She said this was 99 per cent effective. She said there were many occasions when patients tried "to assault you".
10 At the Quad Centre she worked shift work only and always on the same ward. Her shift started at 8.45 pm and finished at 9.15 am. Normally on duty with her were a registered nurse, another enrolled nurse and two to three nurses' assistants. There were about 50 residents on the ward. There was a list of residents that required to be turned in their beds during the night to avoid bed sores. The turns were at 12.00 midnight and 4.00 am. She described how the staff commenced the turns by working down the ward together. Generally they operated in pairs. She acknowledged that the residents at the Quad Centre can be very pedantic about their care and become aggressive if things are not done as they wish.
11 She stated she had turned Mr RJ most nights that she was on duty. He was always asleep. She had one encounter with him when he was awake when she had attended his room to put him to bed. He became very aggressive and swore at her. She reported this to the registered nurse but denied that she was told not to go into his room again. She said she occasionally went into his room when he was awake if he paged for assistance.
12 Ms McMurtrie stated that in her experience Mr RJ was always turned using a draw sheet. She described the process as follows. Normally a resident was lying on his or her side with a pillow behind the resident's back. The pillow was removed which caused the patient to roll back onto his or her back. The resident is then drawn towards one side of the bed
(Page 10)
- using a draw sheet which is positioned underneath the resident and then the resident is gently rolled over onto his or her other side.
13 Ms McMurtrie stated that on 24 May 2001 she and another nurse's assistant, Ms Shirley Marshall, entered Mr RJ's room at about 2.00 am to turn him. They did not turn the light on as they did not want to wake him. She was told that when he was woken he would get verbally aggressive. She believed that when they entered the room that Mr RJ was asleep. They positioned themselves on either side of the bed. Mr RJ was lying on his right side with pillows behind his back. They removed a urinary bottle and Ms Marshall then removed the pillows from behind his back. This caused Mr RJ to roll back onto his back. Ms McMurtrie said she then bent down to untuck the draw sheet. She was bent at an angle of about 45 degrees. Her head was about 30 centimetres from the bed. She said Mr RJ yelled "What the fuck are you doing, put it back" and lashed out with his right arm which was coming directly at her face. She described it as a movement mainly from his shoulder. She said that she went up and back quickly to avoid being hit in the face. No contact was made. It is this sudden movement which is said to have caused the injury to her spine.
14 She said Mr RJ continued swearing at her which caused a registered nurse, Ms Diana Wynn, to come into the room. Arrangements were then made for Mr RJ to turn himself using a bar attached to an overhead sling which is suspended above the head of the bed. He placed his arm over the bar and then lifted himself up and turned himself over. She had not previously seen him do this.
15 Ms McMurtrie stated she went out of the room and then felt a burning sensation in her lower back. She spoke to the registered nurse and was given some analgesics, an ice pack and she lay down on the floor until 4 o'clock in the morning. She was in a lot of pain and not able to assist in the next round of turns and so she went home.
16 Ms McMurtrie stated that if she had known that Mr RJ had assaulted other staff members it would have made a huge difference in the manner in which she approached him. She said she would never have put her face so close to him. She said she would not have bent down to untuck the draw sheet but would have remained in a more upright position.
17 Under cross-examination Ms McMurtrie agreed that she signed a form acknowledging that she had been given instruction when she commenced employment at the Quad Centre on how to deal with
(Page 11)
- unacceptable behaviour by residents. She could not remember being shown a protocol document which stated that if a resident engages in bad behaviour then the resident is to be warned and if the bad behaviour continues then the nurse's assistant is to leave the room.
18 She acknowledged that prior to entering the room on 24 May 2001 she was aware that the temperament and predisposition of Mr RJ was to be verbally aggressive. She knew when she entered the room she needed to be careful and in particular not to wake him up. She said it was not her experience that patients or residents woken from their sleep can be a bit startled.
19 Ms McMurtrie denied that she had been instructed not to enter Mr RJ's room.
20 Ms McMurtrie agreed that the next morning she went to see the Director of Nursing, Ms Robyn Knight. She denied that she stated to Ms Knight that she knew that there had been an earlier incident involving a nurse's assistant by the name of Mr Chan Siharath.
21 Under cross-examination it was put to Ms McMurtrie that Mr RJ had not struck at her but he had flapped his arm down onto the draw sheet trying to stop her from moving the draw sheet. She denied this. She denied that she overreacted. She maintained that Mr RJ lashed out at her with an outward movement of the right arm. She said that the movement was definitely an outward movement and was not down on the draw sheet simply to stop her from using the draw sheet. She agreed the movement of Mr RJ was not upwards as would be the case if he was reaching for a sling device above the bed head.
(b) Peter Lindsay McMurtrie
22 Mr McMurtrie is the husband of the plaintiff. He stated that he was not aware of any prior assaults involving Mr RJ until months after his wife was injured on 24 May 2001. He denied he had mentioned an incident involving a Mr Siharath in a conversation with the Director of Nursing, Ms Robyn Knight, the morning after the incident in which his wife was injured. Under cross-examination he stated he could not recall if he had used the words "consider yourself served" when serving a copy of the writ on Ms Knight.
(c) Elizabeth Margaret Prime
23 Ms Prime was called as an expert witness in nursing procedures. She was qualified as a nurse in the United Kingdom in 1973 after completing a
(Page 12)
- four year diploma course. She is a member of the Royal College of Nursing and a member of the Australian Nursing Federation. She was the Director of Nursing at the Joondalup Health Campus from 2002 to 2008. Since 2005 she has been an Adjunct Associate Professor at the School of Nursing and Midwifery at the Curtin University of Technology. She provided a written report dated 9 July 2008.
24 At p 4 of her report, after referring to nursing and medical protocols that dealt with dealing with unacceptable behaviour of residents, Ms Prime stated as follows:
"It should have been and in the case of Ms McMurtrie it appears she had not been made aware of such guidelines.
Given RJ's previous aggressive behaviour incidents, it would have been most important to ensure that all staff charged with his care would be fully aware of such guidelines and how to put them into practice. Translation of policy into practice is vital in the prevention of injury to staff and patients and it is most important that appropriate and timely education be provided. It appears in the case of Ms McMurtrie that this was not provided."
25 At p 5 of the report she stated as follows:
"Duty of care to an employee requires that such incidents of past aggression are properly documented in the health record and where appropriate all staff involved in the care of the patient and who may be placed at risk be made aware of the patient's issues. A risk reduction strategy should have been developed in consultation with staff and the patient and this should have been documented and form part of the patient's active care plan and health record. An undertaking should have been obtained from the patient that he would adhere to improve behaviour and it should have been made clear to the patient what the consequences would be if he did not comply. This could have been done in the form of a formal patient contract, documented and signed by both parties."
26 At p 6 she stated as follows:
"Behaviour that is aggressive may escalate at any time and no-one should wait until a staff member is injured to acknowledge and attempt to correct the poor behaviour on the
(Page 13)
- part of the resident. There should be continual monitoring of the situation (patient behaviour) by the Registered Nurse in Charge and any signs that behaviour is deteriorating should be reported and dealt with."
27 Under cross-examination Ms Prime acknowledged that she had no experience as a nurse or formal qualification in relation to providing residential care facilities for people suffering permanent disabilities as a result of spinal injuries.
28 Further, she acknowledged that when she prepared her report she had not received copies from the plaintiff's solicitors of documents signed by Ms McMurtrie acknowledging that she had received, as a part of her orientation process, training in dealing with unacceptable behaviour by patients. Further, she had not received a copy of the nursing plan and the Integrated Progress Notes. She acknowledged that the Integrated Progress Notes contained recordings of aggressive behaviour by Mr RJ. Also she had not received documents which confirmed that after an incident involving Mr Chan Siharath and also after the incident involving Ms McMurtrie that the registered nurse, Ms Robyn Knight had spoken to Mr RJ about his behaviour.
29 Ms Prime maintained that any aggressive behaviour whether it be verbal or physical was unacceptable from any patient. This was notwithstanding the difficult situation of patients in a long term residential facility. She believed any verbal abuse of staff should be documented and recorded. When asked what was her solution to preventing patients from verbally abusing staff in a residential facility, she stated as follows:
"My solution would be for all of the clients would be the same, that the staff need to document this, they need to be aware and they need to be made aware by management that this is an issue with this patient because aggressive behaviour can take all shapes and forms and verbal aggression towards a staff member can be just as damaging to them as can a physical assault." (T 125)
- (d) John Kingston Ker
30 Mr Ker is a consultant physician in rehabilitation medicine. He is Head of the Department at the Sir George Bedbrook Spinal Injury Unit at the Shenton Park Campus of the Royal Perth Hospital. He has held that position as Head of the Department for 14 years.
(Page 14)
31 Mr RJ was well known to Mr Ker. Mr Ker explained Mr RJ had sustained an injury on 12 January 1967 when he was dumped in the surf at Scarborough. He was found to have a substantive spinal column injury, primarily a fracture of the fifth cervical vertebra posteriorally displaced into the spinal canal. He was found to have motor function in the C5 and C6 spinal cord segments bilaterally but no motor function distal to this. Mr RJ had lived the vast majority of his life as a permanent resident at the Quadriplegic Centre.
32 Mr Ker examined Mr RJ on 17 July 2008. In a report dated 18 July 2008 Mr Ker reported as follows:
"Whilst lying on his back and to a certain extent his right side, he was able to demonstrate for me actively a full range of uncompromised shoulder movement and full elbow flexion and extension actively of his left and right upper limbs. In that sense he is demonstrating motor function down to and including the C7 myotome.
I would, however, point out that because of his neurological impairment, previous surgery and the passage of time, he has very substantive contractures and deformity in his fingers and thumbs of both hands such that he has no form of useful grip.
Given the range of movements and motor function that I witnessed at my clinical examination, I believe it is entirely reasonable to suggest that this man had the physical capacity to forcibly extend his arm, right or left, whilst lying in bed."
The defendant's witnesses
(a) Philip Nigel Glass
33 Mr Glass is the executive director of the Quad Centre. He described the Quad Centre as the facility in Western Australia that provides the highest level of residential care for long term spinal paralysed persons.
34 He explained that because of the level of disability and the extent of the dependency of the residents, the residents become pedantic about their routines and care. In an attempt to achieve control over their routine and care they develop very direct methods of expression including harsh direct language, including swearing.
35 Mr Glass stated that Mr RJ had been a resident at the Quadriplegic Centre since 1969.
(Page 15)
36 Mr Glass was referred to a document entitled "Resident Information Package and Rules" which contained a provision as follows:
"1. Any person who in any part of The Quadriplegic Centre or the grounds thereof:
(a) engages in conduct which endangers or is likely to endanger the health or welfare of any person; or
(b) commits any illegal act; or
(c) fails to comply with any of these rules shall be liable to be discharged from The Quadriplegic Centre."
38 Under cross-examination he agreed that in November 2001 he spoke to Mr RJ about his behaviour and then a letter was sent to Mr RJ by the Director of Nursing which stated as follows:
"I must request that you not yell at and abuse staff to whom you take exception. If you find that staff practices are not at a reasonable standard, I request that you raise the issue directly with the Registered Nurse in Charge, not with the staff in attendance. The performance of the staff can then be assessed and any identified deficits rectified by additional training, if necessary.
If you continue to abuse staff, I will be unable to keep any staff to assign to care for you. In that instance you would need to consider obtaining alternative accommodation.
Any further abuse of staff will be addressed by the admission/discharge committee with a view to reconsidering your permanence of residence."
(Page 16)
39 Mr Glass stated that the last paragraph in the letter was a hollow threat. Mr Glass said he met with Mr RJ and sent the letter because earlier discussions with Mr RJ by lower level staff members had been unsuccessful. Mr Glass said the letter led to a modification in Mr RJ's behaviour.
(b) Lorraine Cynthia Bloodworth
40 She has been employed at the Quad Centre since January of 1984.
41 She explained that the orientation process undertaken at the commencement of Ms McMurtrie's employment consisted of one full day with administration staff who dealt with various administration issues. One of the topics covered in the first day was "Protocols, Work Agreements and Appraisals". After this full day of instruction, Ms McMurtrie worked three nightshifts. Whilst working these nightshifts Ms McMurtrie received further orientation instructions. This included orientation on "strategies for dealing with unacceptable behaviour" which was conducted by Ms Bloodworth. Ms Bloodworth said that the relevant written protocols were explained by her to Ms McMurtrie.
42 Ms Bloodworth explained that the protocols for unacceptable behaviour were necessary as residents of the Quad Centre were renowned for engaging in unacceptable behaviour. She explained the residents were generally angry with their loss of physical function and tried to exercise some control over their circumstances by very aggressive verbal behaviour. Ms Bloodworth explained that new staff are instructed that if they come across unacceptable behaviour then they are to follow the protocol, which in essence consists of telling the resident that his or her behaviour is unacceptable. If the resident continues with the unacceptable behaviour, then to tell the resident that the staff will leave the room. Staff are to return about 10 minutes later and if the resident continues to be verbally aggressive, then the matter is to be reported to the registered nurse.
43 Ms Bloodworth was familiar with Mr RJ. She dealt with him on a regular basis at least three nights of the week. She described him as having limited movement in his upper arms, had an inability to shrug his shoulders and could move his elbows. She stated he could feed himself when he was in a chair but when he was in bed he needed somebody to feed him. She said he had contracted fingers and very badly wasted forearms.
(Page 17)
44 She described Mr RJ as being a "grumpy old man". She said he was verbally aggressive but he never lashed out to her knowledge. He had never been physically violent towards her. As the registered nurse on duty she was not aware of any incident where he had physically threatened or tried to inflict physical harm on other nursing staff.
45 Under cross-examination she stated that a copy of the protocol document was kept in the nurses' office. She could not say whether Ms McMurtrie had been provided with a copy of the protocol document but the protocol was certainly explained to Ms McMurtrie by Ms Bloodworth.
46 Ms Bloodworth stated that when she first commenced work at the Quad Centre, the staff would turn Mr RJ by a male staff member placing his arms underneath Mr RJ and physically turning him. She stated that sometime before May 2001 (she could not recall exactly when) the policy changed and draw sheets were used to turn Mr RJ. She said Mr RJ did not like this and if he woke during the process he would shout at the staff members executing the turn.
47 Ms Bloodworth acknowledged that if Mr RJ had assaulted anyone or struck a member of the staff this would be a serious thing. She would expect to know about this. She also agreed that staff, who were caring for Mr RJ, should also be told of any such incidents and told to be careful.
(c) Vanessa Starcevich
48 Ms Starcevich was a registered nurse who was employed at the Quad Centre from 1996 to 2007. She started as a registered nurse but later was promoted to the position of clinical nurse and then later clinical nurse specialist.
49 During her time at the Quad Centre she had come to know Mr RJ. She described him as having limited movement in his arms. She said that because of muscle wasting this limitation was particularly so to the lower arm.
50 She described Mr RJ as being a loner and a gruff. She had never witnessed any abuse but she had heard that he abused other people. She had never observed any physical violence from him. She could not recall any incident reported to her during the handover of a shift concerning Mr RJ. She was aware of an incident concerning a male nurse, Mr Chan Siharath as a result of something she was told.
(Page 18)
51 Under cross-examination she stated Mr RJ's arm movements enabled him to raise his arm up to get his arm onto the bar of an overhead sling. However, whilst lying on his back he had difficulty moving his arms forward and away from his body. He had difficulty with movements involving coordination of his hand.
52 Ms Starcevich agreed that it would be important for staff to know of any incident of physical aggression, different from the verbal aggression that was more common.
53 She confirmed that in her experience patients at the Quad Centre had built-up frustrations which manifested itself with verbal aggression. In the case of Mr RJ she said these verbal aggressions varied in regularity. There may be one each day for three days in a row and then it would not happen for three months.
(d) Shirley Anne Marshall
54 Ms Marshall was a nursing assistant employed at the Quadriplegic Centre between 2000 and 2006. She normally worked on the Ashburton ward but had been transferred to the Gascoigne ward shortly before the incident on 24 May 2001. In her dealings with Mr RJ she had never seen him physically violent.
55 Ms Marshall stated that on 24 May 2001 she and the plaintiff, Ms McMurtrie, entered Mr RJ’s room to carry out a turn. She said the night light was on because one of them would have switched it on when they entered the room. They positioned themselves on either side of the bed. There was a draw sheet underneath Mr RJ but in her experience the procedure for turning Mr RJ was not to use the draw sheet but for him to turn himself using the sling which was suspended above the bed.
56 Ms Marshall stated that Mr RJ was lying on his right side. Ms Marshall was new to the ward and was therefore watching Ms McMurtrie carefully to see what she intended to do. Ms Marshall removed a pillow which was behind the back of Mr RJ. She then observed Ms McMurtrie pull out the draw sheet. At that point Mr RJ hit down on the draw sheet with his right hand and said "What the fuck are you doing?" She did not observe Mr RJ lash out nor did she see the plaintiff lurch backwards. She said she was watching the plaintiff closely because Ms Marshall was new to the ward and did not want to do anything she was not supposed to do. Ms Marshall stated that after Mr RJ swore at the plaintiff, the plaintiff placed the draw sheet back in and a turn was executed by placing Mr RJ's right arm in the sling above his bed and
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- he rolled himself over. She stated that the registered nurse, Diana Wynne then came into the room and further swearing occurred.
57 Under cross-examination Ms Marshall stated that she commenced work at the Quad Centre in about November or December 2000. She said that prior to the incident on 24 May 2001 she had been working in the Gascoigne ward for about six weeks and had turned Mr RJ about 20 times. Her understanding was that the turns on Mr RJ were to be a two-person turn but the draw sheet was not to be used.
58 Ms Marshall stated that Mr RJ would often pretend to be asleep and would then tell staff off when they did something wrong. She thought that on 24 May 2001 they woke up Mr RJ before turning him by offering him a drink.
59 Under cross-examination Ms Marshall made a number of contradictory statements. She stated that she thought that she had turned the light on when they entered the room. However, she later admitted that she could not remember whether the light was on or off. Later she stated that as far as she was concerned Mr RJ was not to be turned using a draw sheet and that this was recorded in a list of turns to be performed. However she later said that the method of turning was not documented, just that Mr RJ was to be turned. She described in her evidence that Mr RJ had a pillow between his legs to stop him from turning over in his sleep and that this pillow was between his knees because he only had one leg. However she later conceded that she was not sure whether he had one leg or two legs at the time of the incident. Initially in cross-examination Ms Marshall stated that the plaintiff had completed pulling out the draw sheet when Mr RJ swore, but then later conceded that she had only half untucked the sheet.
60 Ms Marshall stated that she felt that she had been set up by Ms McMurtrie when the plaintiff asked her later in the shift "Did you see me jump back?" Ms Marshall stated that she felt annoyed with Ms McMurtrie that night as she had not been pulling her weight during the turns.
61 Ms Marshall stated that before the incident on 24 May 2001 she was not aware that Mr RJ had struck out at staff caring for him. She stated she probably would have been more careful when going into his room to do turns if she had known this.
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- (e) Dr Warner Quarles
62 Dr Quarles is a qualified medical practitioner who is in general practice. He has provided general practice services to the Quad Centre for approximately 12 years and during that time he has treated Mr RJ.
63 He described Mr RJ as having a rather brusque edge to his personality. He had observed a softening of his demeanour since 2001. He had not observed any episodes of physical aggression. He formally examined Mr RJ in the first half of 2007 and in a document entitled "Substance of Expert Evidence" adopted by him he stated as follows:
"My findings are that Mr RJ has limited shoulder movements, and can abduct only to about 60 degrees. His shoulder muscle flexion and extension strength of about 4/5, elbow flexion and extension strength in isolation about 4/5, wrist extension 3+, flexion 3/5; fingers are held in fixed extension at metacarpal phalangeal joints and have no power.
I found him to have minimal power below the elbows and moderate power of proximal limbs around the shoulder.
It is my opinion, based on my attendance on him over the years, Mr RJ's physical limitations in relation to his upper body would have been similar in 2001 to when I examined him in 2007.
In my opinion, based on my knowledge of the nature and extent of Mr RJ's severe medical condition – fracture of his cervical spine at the level of C5/6 and significant muscle wasting in both limbs – I do not consider that he was physically capable of delivering an injurious blow to an adult staff member."
64 Under cross-examination Dr Quarles stated Mr RJ had some residual movement and power in his shoulder. He could deliver a blow of moderate force but it would be a very crude blow. It would have very little direction or control over it and generally he did not think it would be of sufficient force to cause any significant injuries.
65 To the extent that his assessment of the shoulder movements differed to that of Mr Ker he accepted that Mr Ker was more qualified.
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- (f) Jennifer Brown
66 Ms Brown is a registered nurse who was employed at the Quad Centre from February 1999 until the present time. Ms Brown was on night duty in the Gascoigne ward and knew Mr RJ.
67 As at 24 May 2001 she said turns of Mr RJ were effected by placing his arms into an overhead sling and turning himself.
68 She described Mr RJ as being a grumpy person but she had not witnessed any incidents of violence.
69 Ms Brown stated that prior to 24 May 2001 there had been a couple of occasions when Ms McMurtrie had reported that Mr RJ had been verbally aggressive to her. Ms Brown had formed the view that Ms McMurtrie had not followed the protocols by reprimanding Mr RJ and then leaving the room. Ms Brown gave Ms McMurtrie a direction that she was not to go into Mr RJ's room again and by this she meant that she was not to go into the room without Ms Brown to show her how to react to situations of abuse.
70 Under cross-examination Ms Brown stated she was the registered nurse in charge on 1 November 2000 when Mr Siharath reported that he had been struck by Mr RJ. Ms Brown wrote up an incident report and made a recommendation that two people be involved in the turn of Mr RJ. She felt that this was sufficient action as the incident report then went to the manager and Director of Nursing for further action. She stated that after the incident involving Mr Siharath she reported this to the next shift at handover.
71 Ms Brown stated the Nursing Care Plan and the Integrated Progress Notes were held in files in the sister's office in the ward. She also described a separate document prepared by the physiotherapist giving turning instructions in relation to each patient. She stated that nursing assistants were told to read these instructions.
72 Ms Brown stated Mr RJ's strength and use of his shoulder was better in 2001 than in 2008.
(g) Robyn Anne Knight
73 Ms Knight is a retired nurse. She was the Director of Nursing at the Quad Centre from August 2000 to July 2006. She has been a registered nurse since 1973. She holds a Bachelor of Applied Science Nursing with distinction from the Curtin University. She also undertook a Spinal
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- Management course for registered nurses at Curtin University in 2001. She was called both as a witness of facts and also as an expert witness in nursing.
74 Ms Knight was familiar with Mr RJ. She described him as being pedantic about the care he was provided by the staff at the Quad Centre. This was a common trait of residents of the Quad Centre. This was because of their need to control their destiny in terms of health and life outcomes. That is, they were pedantic about the way they were treated and wanted to have control over their health care.
75 Ms Knight stated that prior to 24 May 2001 she was only aware of one incident of a physical nature involving aggressive behaviour by Mr RJ. She received an incident report which was later countersigned by her on 1 November 2000 concerning an incident with a nurse's assistant, Mr Chan Siharath. After receiving the incident report she spoke to Mr RJ the next day. He demonstrated to her the nature of the physical contact which was in the nature of a flick. She told him not to do this again and he agreed. She gave a direction that two persons were to be in Mr RJ's room when he was being turned. She directed that two persons had to be present so that they could provide support to one another in case there was any verbal abuse. She felt these precautions were adequate as she concluded that:
1. Mr RJ was not capable of inflicting physical harm.
2. Although verbally aggressive, he was no more likely than any other resident to be physically aggressive.
3. The protocols in place at the time were in accordance with accepted nursing practice in terms of managing inappropriate behaviour of patients.
76 In her opinion no further action was required to control Mr RJ's behaviour as he did not habitually physically contact staff. Further she felt there was nothing that could be done about his verbal abuse of staff other than for the staff to follow the protocols. She saw no point in having a contract with him as he was not motivated to change and realistically the Quad Centre was not in a position to enforce a sanction of expelling him from the centre.
77 Ms Knight stated that on 24 May 2001 she met with Ms McMurtrie and her husband. She stated that Mr McMurtrie referred to Mr RJ's personal circumstances which she believed ought to have been confidential (such as the fact that he had lived out of the Quad Centre for
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- a period of time and had no friends and relatives). She said he also referred to an earlier incident involving "that Chinese nursing assistant" which she believed was a reference to Mr Siharath. Ms Knight complained that Mr McMurtrie was overpowering and intimidating. Ms Knight became upset in her evidence when she described how she was served with a writ in these proceedings by Mr McMurtrie, claiming he rushed into her office and, was aggressive and intimidating and said "Consider yourself served".
78 Ms Knight stated when she spoke to Mr RJ about the Chan Siharath incident, he indicated he would not do it again. She accepted this because in her dealings with him she found him to be a direct and honest man. He did not have any reason to lie because he did not care what people thought.
79 Under cross-examination, Ms Knight stated that prior to the incident involving Mr Sirahath, Mr RJ had been turned at night using only one person. After the incident, and as a result of her directions, this changed to two persons.
80 When cross-examined about Mr Ker's report following his examination in July 2008, Ms Knight stated that Mr RJ's condition had improved compared with what it was in 2001. She did not agree with the evidence of Dr Quarles that there had been no change in Mr RJ's condition and nor did she agree with the evidence of Jennifer Brown that Mr RJ's condition was in fact better in May 2001. However, she eventually conceded that she agreed with Mr Ker's report that Mr RJ was capable of forcefully extending his arms but said it was unlikely that he would use that sort of force.
81 Ms Knight stated that even accepting Mr Ker's assessment of the power of Mr RJ's shoulder movement, she would not have taken any different course of action than she did. She assessed that the likelihood that he would repeat an incident such as occurred with Mr Siharath and to do it with any sort of power was minimal.
82 When challenged about the fact that the defendant had been unable to produce any document which set out the method of night turns for each individual resident, Ms Knight sought to justify this by stating that of the 54 nursing assistants she believed about 14 had minimal literacy skills and therefore a written system was not required. However, she maintained that such a document existed.
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83 Ms Knight stated that although the Integrated Progress Notes recorded "getting rude and aggressive to staff in many occasions", on investigating the matter she believed that this statement was a generalisation which was incorrect and on her investigation she found that there had only been four or five incidents.
84 Ms Knight rejected the proposition that she should have done more to prevent Mr RJ from continuing to abuse staff. She stated that he would not have agreed to sign a contract to change his behaviour and there were no sanctions that she could impose to force him to do so. Although she agreed that verbal aggression was unacceptable, she maintained that it was difficult to eradicate for residents of the Quad Centre. It involved balancing the needs of the residents against the needs of the staff.
85 Ms Knight stated that the staff had been made aware of the Siharath incident. She said the incident was recorded in the Integrated Progress Notes which were available to staff in the nurse's office. She had an expectation that the nurses' assistants would read these notes but added the qualification "that is, if they could read". She also believed that the nursing assistants would know about the Siharath incident from general discussion between staff. She agreed that it was important that everyone involved in Mr RJ's care was aware of that incident.
86 She stated that she was 99 per cent sure the incident claimed by Ms McMurtrie did not happen.
My findings
1. The Quad Centre was divided into three wards. Mr RJ was in a ward known as "Gascoigne Ward". This ward had about 50 residents. I find that Mr RJ was a long-term resident of the Quad Centre, being a quadriplegic who was injured in 1969. The Quad Centre provides a facility of last resort for persons such as Mr RJ who suffer severe disabilities as a result of spinal injuries. I accept the evidence of Mr Glass, Ms Bloodworth, Dr Quarles and Ms Knight that there are persons at the Quad Centre who are frustrated as to their situation and as a result of this frustration become pedantic about their care and can be verbally aggressive towards staff. I find that Mr RJ was such a resident and was well known to the staff, including the plaintiff Ms McMurtrie, to be a person who would frequently engage in verbally aggressive conduct. I reject the evidence of Ms Knight that this was confined to a limited number of occasions. The evidence of other staff
- members of the Quad Centre was that Mr RJ was notorious for his verbal aggression.
- 2. I find that the Quad Centre had a number of procedures in place which related to controlling the behaviour of residents. These included the following:
(i) all staff, on being employed by the Quad Centre, were required to undergo an orientation programme which included being informed of the protocols of the Quad Centre for dealing with unacceptable behaviour by residents. The plaintiff underwent such an orientation and received instruction as to the protocols concerning how to deal with unacceptable behaviour by residents.
(ii) The Quad Centre had a system in place for the care of residents which included the following:
(a) a written Nursing Care Plan which was reviewed monthly and annually by the nursing staff. Also the Nursing Care Plan was reviewed by the resident who annually signed his acceptance of the plan. Such a plan was in existence for Mr RJ.
(b) a separate record known as the "Integrated Progress Notes" was maintained which recorded any incidents or changes in the care of the resident. The Nursing Care Plan and Integrated Progress Notes were kept in separate files in the nursing sister's office of each ward.
(c) a procedure for the reporting of incidents involving residents. An incident report was completed either by the staff member involved or his or her superior. This incident report was then submitted to the Director of Nursing. The incident report included provision for making a recommendation as to any changes to be implemented.
3. I find that there was a limited capacity for the Quad Centre to control the behaviour of residents. The Quad Centre is a facility of last resort for most residents, providing care mostly of an essential nature. There is a limited capacity to impose a sanction against residents for unacceptable behaviour by delaying the provision of non-essential care because of the limited amount of non essential care provided. Also, because the Quad Centre is a facility of final resort, it is generally unable to expel residents
- because of unacceptable conduct. Although I accept the evidence of Ms Prime that ideally verbally aggressive behaviour by residents is unacceptable, I conclude that a more tolerant and realistic attitude needed to be taken in relation to residents of the Quad Centre. I find that appropriately and compassionately the Quad Centre allowed residents more leeway in terms of verbally aggressive behaviour than would otherwise be allowed in other care facilities. I accept the evidence of Mr Glass, who has a long experience dealing with the residents of the Quad Centre, that the primary method available to the Quad Centre to control the behaviour of a resident is by talking to the resident and seeking undertakings from the resident to change his or her behaviour. A contract of good behaviour might be entered into in an extreme case but any threat contained in a contract that if behaviour did not improve the resident would be expelled was generally a hollow threat.
- 4. I find that staff were instructed to report incidents involving physical aggression by patients. However, the staff were not instructed to report or record incidents involving verbal aggression of the type involving complaints by residents of care. This I conclude was appropriate given the circumstances of the residents and the frequency with which such verbal complaints were made. Instead the staff were instructed to follow the protocols in such circumstances.
5. I find that on 1 November 2000 a report was made to the registered nurse on duty at the Gascoigne ward, Ms Brown, by a nursing assistant Mr Chan Siharath that an incident had occurred with Mr RJ. The report of Mr Sirahath was that an incident occurred at night after Mr RJ was turned and objected to his pillows being re-arranged. Mr RJ swore at Mr Siharath and when Mr Siharath asked Mr RJ to quieten down, Mr RJ then hit Mr Siharath on the right shoulder. This incident was included in a written incident report and was also recorded in the Integrated Progress Notes.
6. I find that the Quad Centre also had a system in place that at the end of a shift the registered nurse on duty reported to the staff of the next shift any incident that had occurred during the shift just completed. I find that in accordance with this procedure, on 1 November 2000 Ms Brown reported to the next shift the incident concerning Mr Siharath.
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- 7. I find, in accordance with the evidence of Ms Knight, that the Integrated Progress Notes were available for inspection by nursing assistants coming on duty. However, there is no evidence that there was a procedure that nursing assistants read the Integrated Progress Notes to familiarise themselves with any incidents that had been recorded nor were they directed to do so. It was never put to Ms McMurtrie in cross-examination that she had been instructed to read the Integrated Progress Notes. Likewise no evidence was lead by the defendant's witnesses that the nursing assistants were instructed to read the notes. I conclude from the evidence of Ms Knight that the Quad Centre appeared to rely on general conversation as the means by which nursing assistants became familiar with any incident that might have occurred.
8. I find that as a result of the reported incident concerning Mr Siharath the matter was investigated by Ms Knight. I accept that she concluded that the force used by Mr RJ was minimal. She concluded this from the fact that no reported injury was suffered by Mr Siharath and further she accepted Mr RJ's description of the incident, which was that he had simply slapped Mr Siharath. I find that Ms Knight warned Mr RJ that his conduct was unacceptable. Further, she implemented a change to the procedure of dealing with Mr RJ by requiring that all future turns of Mr RJ were to be conducted by two staff members. This change was implemented as Ms Knight felt that the presence of two staff members was likely to ensure that the protocols were observed and a staff member who was verbally abused was likely to have another staff member providing support. This is consistent with the entry made in the Integrated Progress Notes on 2 November 2000.
9. I find the response by Ms Knight in relation to the Siharath incident in terms of attempting to modify Mr RJ's behaviour was appropriate and reasonable in the circumstances. I find that no further action at that point of time in relation to Mr RJ was appropriate. The alleged contact with Mr Siharath was an isolated incident. I do not believe that at that point of time it was necessary that the Quad Centre enter into a contract of behaviour with Mr RJ containing a threat that if he did not improve his behaviour he would be expelled from the centre.
10. I find that prior to 24 May 2001 the management of the Quad Centre did not have any knowledge of any other incident involving violence by Mr RJ. After 24 May 2001 it was reported that there
- had been an incident in April 2001 when it was alleged that after Mr RJ had been turned and when a Ms D Wynne, was positioning pillows under him, he lashed out with his right hand. It was reported that there was little physical power when it connected with Ms Wynne
- 11. I find that prior to 24 May 2001 the plaintiff Ms McMurtrie was involved in a number of incidents involving Mr RJ where Mr RJ had been verbally aggressive towards her. I accept the evidence of Ms Brown that these incidents had been reported to her and she took the view that Ms McMurtrie had not followed the protocols by reprimanding Mr RJ and leaving the room. As a result of this she gave Ms McMurtrie a direction that she was not to go into Mr RJ's room again. I do not accept Ms McMurtrie's evidence that she had never been instructed not to enter Mr RJ's room. I prefer the evidence of Ms Brown given the amount of detail she provided concerning this matter.
However, there is no evidence that this instruction was communicated to the registered nurses in charge of other shifts on which Ms McMurtrie was working. Accordingly, the instruction did not necessarily apply to the shift being worked by Ms McMurtrie on 24 May 2001 when the registered nurse on duty was not Ms Brown.
12. I find that prior to the incident on 24 May 2001, Ms McMurtrie had no prior knowledge of an incident involving Mr Siharath or Ms Wynne. As noted above it was not suggested in cross-examination that Ms McMurtrie had been instructed to read the Integrated Progress Notes and nor that she had done so. Further, there is no evidence that Ms McMurtrie was informed of the Siharath incident at a handover. Although Ms Brown gave evidence that she would have informed the next shift of the incident involving Mr Siharath, there is no evidence that this advice had been repeated at subsequent handovers. Further, there is no evidence that Ms McMurtrie received advice about the Siharath incident in general conversation with other nursing staff. The Siharath incident occurred several months before Ms McMurtrie commenced employment at the Quad Centre and it is unlikely it was a topic of continuing conversation. There was no evidence presented by a nursing assistant that it was general knowledge among nursing assistants of the Siharath incident, and the evidence of Ms Marshall was that she was unaware of the Siharath incident. Also Ms Bloodworth was unaware of the
- incident. I do not accept the evidence of Ms Knight that at a meeting held on the morning after Ms McMurtrie was injured, Mr McMurtrie referred to an incident involving "a Chinese nurse's assistant" or made any other reference to the Siharath incident. In many respects I found that Ms Knight was an unreliable witness. I find that Mr McMurtrie acted aggressively when he served the writ and this has influenced Ms Knight's attitude to the claim being made by Ms McMurtrie. Ms Knight has concluded in her own mind that Ms McMurtrie's claim is false. I conclude that her evidence was tailored to defeat the claim by Ms McMurtrie. This included stating that there was no point getting nursing assistants to read the Integrated Progress Notes as many of them were illiterate. Further, I believe she sought to understate the extent Mr RJ used aggressive language by stating in her evidence that on her investigation the use of abusive language by Mr RJ was only on four or five occasions. The Integrated Progress Notes record that it was a problem occurring on "many occasions" and this is consistent with the experience of other nursing staff who gave evidence. Further, I conclude she sought to minimise the impact of Mr Ker's evidence by stating that Mr RJ's condition had improved after the incident in 2001 and before Mr Ker assessed Mr RJ in 2008. This was contrary to the evidence of Dr Quarles and Ms Brown.
- 13. I find that on 24 May 2001 Ms McMurtrie and Ms Marshall entered Mr RJ's room at about 2.00 am to turn him. At the time he appeared to be asleep. Mr RJ was lying on his right side at a slight angle with pillows behind him. Ms McMurtrie was positioned on one side of the bed and Ms Marshall on the other side of the bed. Ms Marshall was positioned on the side of the bed closest to the pillows. The pillows were removed which caused Mr RJ to roll back onto his back. Ms McMurtrie, who was positioned on Mr RJ's right-hand side, bent forward to untuck a draw sheet which is used to pull the patient towards the nursing assistant and the patient is then rolled over onto his opposite side. When Ms McMurtrie bent forward and commenced to untuck the draw sheet, Mr RJ either woke or became alert. He instantly swore at her by saying "What the fuck are you doing, put it back" and lashed out with his right arm. I conclude that the movement was outward and downwards onto the drawsheet. I conclude that the words "put it back" suggest that Mr RJ was objecting to the draw sheet being used and he is therefore more likely to have slammed down onto the draw sheet to prevent it from being used. This is
- also consistent with what Ms Marshall described in her evidence. However, I accept that Ms McMurtrie may have misinterpreted that Mr RJ's movements as being an attempt to lash out at her. I find that at the time she was bent over the edge of the bed to untuck the draw sheet and her head was only 30 cm from the edge of the bed. At the time the lighting was poor. I accept the evidence of Ms McMurtrie that the light was not switched on as they did not wish to wake Mr RJ.
- 14. I accept the evidence of Mr Ker as to the physical capabilities of Mr RJ in 2008. I also conclude Mr RJ's physical capabilities in 2008 were consistent with his capabilities in May 2001. This finding is supported by the evidence of Dr Quarles and Ms Brown. I also conclude, on the basis of Mr Ker's evidence, that Mr RJ was capable of making a sudden movement outwards and downwards onto the draw sheet. I believe this finding is consistent with the evidence of Dr Quarles.
15. I find that as a result of the sudden movement of Mr RJ's right arm, Ms McMurtrie believed she was going to be struck and lurched back suddenly, causing her injury.
The law
87 The plaintiff, Ms McMurtrie, must prove on the balance of probabilities that there was a duty of care, a breach of the duty of care and the breach caused injury to the plaintiff.
88 It is not disputed in this matter that the defendant owed a duty of care to the plaintiff as its employee. The basic principles in relation to the duty owed by an employer to an employee were set out by the High Court in Czatyrko v Edith Cowan University [2005] HCA14; (2005) 79 ALJR 839 (at 842 to 843, [12]) as follows:
"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards."
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89 (See also Bankstown Foundry Pty Ltd v Braistina (1985-6) 160 CLR 301, Mason, Wilson and Dawson JJ at p 307-8; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at p 25 per Dixon and Kitto JJ).
90 The employer's obligation is not merely to provide a safe system of work but also to maintain and enforce such a system (see McLean v Tedman (1984) 155 CLR 306). However, the obligation is only to take reasonable care for the safety of the employee. It does not mean that the employer must safeguard the employee completely from all perils (see Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318 per Windeyer J; Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 per Malcolm CJ at p 301).
91 The classical formula of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at p 47 sets out the approach to follow in judging whether there has been a breach of a duty of care:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. "
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92 In the case of Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42, Gummow J at par 69 stated that:
"What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention."
93 When considering the question of whether a reasonable person in the defendant’s position would have foreseen that his conduct involved a risk to the plaintiff, it is not necessary that the defendant should have foreseen the precise risk of injury or how it occurred (see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 578 [87]).
94 When considering what is a reasonable response to a foreseeable risk the tribunal of fact must look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury. In this case this involves looking at the risks of injury due to physically aggressive behaviour by Mr RJ to a nurse's assistant performing tasks involving turning Mr RJ and what a reasonable person would do by way of response to that risk. (see New South Wales v Fahy [2007] HCA 20 per Gummow and Hayne JJ [57] and [62]; Vairy v Wyong Shire Council (2005) 223 CLR 422 per Hayne J [124] and per Gummow J [60]-[61]).
95 When the alleged breach of duty of care arises from an omission, the plaintiff needs to establish either that the employer failed to do a thing commonly done by other persons in like circumstances or to show that it was a thing so necessary that it would be unreasonable to neglect to do it (see Crombie v Uniting Church Trust (supra) p 302; Morton v William Dixon Ltd [1909] SC 807 at 809 per Lord President Dunedin).
96 When considering the question of whether a reasonable person in the defendant’s position would have foreseen its conduct involved a risk to the plaintiff, it is not necessary that the defendant should have foreseen the precise risk of injury or how it occurred (see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 578 [87]).
97 A failure to warn an employee of a threat of violent behaviour of a third party may amount to a breach of duty of care: (see Keeys v State of Queensland [1998] 2 Qd R 36; Leeder v The State of Western Australia[2008] WASCA 192). Likewise, a breach of duty may arise from failing to control the aggression of a third party and this breach of duty can be causative of injury (see Gittani Stone Pty Limited v Pavkovic (supra)).
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98 If the plaintiff, Ms McMurtrie, establishes that the defendant failed to take reasonable action to remove a foreseeable risk of injury to Ms McMurtrie, the next issue to consider is whether the breach of duty caused the injury suffered by Ms McMurtrie.
99 Whether or not a causal connection exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be determined on the balance of probabilities (see Bennett v Minister for Community Welfare (1992) 176 CLR 408 per McHugh J at p 428). As stated in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at p 515, the issue of causation must be determined by applying common sense to the facts of each particular case.
100 The issue of causation can be divided into two questions. McLure JA in City ofStirling v Tremeer (2006) 32 WAR 155 at [73] summarised the law as follows:
"Generally, the issue of causation is divided into two questions: the question of causation in fact which is generally determined by the application of the 'but for' test and a further question of whether the defendant is in law causally responsible for the damage. This is reflected in the judgment of Mason CJ, Deane and Toohey JJ in Bennett v Minister for Community Welfare (1992) 176 CLR 408 (at 412-413):
'In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude. The inadequacy of the 'but for' test has emerged in cases in which a superseding cause, amounting to a novus actus interveniens, has been held to break the chain of causation which would have otherwise resulted from an earlier wrongful act or omission. In those cases, though the earlier wrongful act or omission may have amounted to an essential condition of the occurrence of the ultimate harm, it was not the true cause or a true cause of that harm (footnotes omitted)'."
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101 (See also March v E & MH Stramare Pty Ltd (supra) at 515; Amaca Pty Ltd v Hannell(2007) 34 WAR 109, Steytler P and McLure AJ at p 193).
102 It seems to be now recognised in Australia that the decision of Gaudron J in Bennett's case is a correct statement of the law of causation in Australia:
"Although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury." (my emphasis)
103 (See Bennett's case (supra) per Gaudron J at 420-421, Amaca Pty Ltd v Hannell(supra), Steytler P and McLure AJ at p 193).
104 The application of these principles requires a consideration of whether the injury occurred "within an area of foreseeable risk". This brings together the same considerations as the question of whether a breach of duty has occurred. Gaudron J in Bennett (at 422) stated that there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation because the duty relates to precautions a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of the kind suffered and a precaution would not be classified as reasonable unless its performance would, in the ordinary course of events, avert the risk that called it into existence.
105 The nature of the duty in a case of failing to warn was described by Gaudron J in Bennett's case (supra) at p 423 as follows:
"The duty may be likened to the duty to warn or the duty to instruct a person who might otherwise be at risk of injury. The immediate effect of the duty is to provide that person with information which he can use to protect himself." (my emphasis)
106 In this case the alleged breach of duty of care, insofar as it suggests a warning should have been given, relates to providing information which
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- the plaintiff might use so as to protect herself against physically aggressive behaviour
Conclusions
(a) Scope of duty of care and alleged breach
107 The issue as to the scope of the defendant's duty of care and a question of whether there had been a breach of this duty of care are usually considered together in cases involving a recognised duty of care, such as that of an employer to an employee (see Gittani Stone Pty Ltd v Pavkovic (supra); Hodgson JA [21], Sheather v Country Energy [2007] NSWCA 179 at [20]-[23]).
108 The first issue I will deal with arises under par 6.2 of the statement of claim as to the alleged failure of the defendant to "take any appropriate measures to control RJ's behaviour" following earlier incidents so as to avoid their re-occurrence on 24 May 2001.
109 Although, I conclude that the defendant had a duty of care to take appropriate measures to control the behaviour of Mr RJ, I conclude that the steps taken by the Quad Centre against Mr RJ were appropriate and reasonable in the circumstances. In my opinion the Quad Centre had an appropriate system in place for restraining unacceptable behaviour of residents. Further, the response to the Siharath incident was in accordance with the Quad Centre's system and was appropriate, given the minor nature of the alleged assault and the fact that it was an isolated incident in the context of the number of times that staff needed to turn Mr RJ in his bed or provide him with other essential services. Prior to 24 May 2001, management was not aware of the Ms Wynne incident as she had inadvertently failed to report this incident. Accordingly, I dismiss the plaintiff's claim based upon this alleged ground of negligence.
110 Paragraphs 6.1 and 6.3 of the pleaded grounds of negligence contained in the statement of claim both relate to the issue of the defendant failing to warn Ms McMurtrie of the prior aggressive behaviour of Mr RJ. The evidence of Ms Bloodworth was that she believed an incident of an assault on staff by Mr RJ was a serious matter and staff should have been warned of any such incident and told to be careful. The evidence of Ms Bloodworth that staff should be told of such an incident was supported by Ms Prime, Ms Starcevich, Ms Marshall and Ms Knight. Ms Marshall stated that if she had known of a prior incident of physical aggression by Mr RJ, she probably would have been more careful going into Mr RJ's room.
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111 I conclude that the defendant failed to warn Ms McMurtrie of the prior incident of physically aggressive behaviour of Mr RJ involving Mr Siharath. Further, the information was material and the defendant ought to have done so. Accordingly, I conclude that the defendant was negligent as pleaded in par 6.1 of the statement of claim. Further, I conclude that the defendant was negligent and in breach of its duty of care by not having in place a system whereby nursing assistants were warned of the prior physically aggressive behaviour known to management on the part of Mr RJ. As stated in my findings above, there was no system in place to ensure that the nursing assistants were alerted to entries in the Integrated Progress Notes which recorded such incidents. Further, the system of informing staff of incidents at shift changes only operated to inform staff of an incident that had occurred in the previous shift. There was no system in place to inform subsequent shifts of any incident occurring. The fact that there was no adequate system in place is confirmed by the evidence of Ms Bloodworth and Ms Marshall that they were not aware of the prior incident involving Mr Siharath.
112 Applying the Shirt formula I conclude that a reasonable person in the defendant's position would have foreseen that a failure to warn Ms McMurtrie of an incident of prior aggressive physical conduct by Mr RJ involved a risk of injury to her. The risk was that she would not exercise sufficient care to avoid any physical aggression by Mr RJ. I conclude a reasonable response required the defendant to alert nursing assistants of the Siharath incident either by ensuring that they were shown the entry in the Integrated Progress Notes or ensuring they were orally warned of the prior incident. The magnitude of the risk of injury and the degree of probability of its occurrence were sufficient in my opinion to warrant the plaintiff, Ms McMurtrie and other nursing assistants being warned.
113 Although I find that there was a breach by the defendant in failing to warn Ms McMurtrie of the earlier incident involving Mr Siharath, I am satisfied that there was no such breach in relation to warning Ms McMurtrie of Mr RJ's propensity to be verbally aggressive. This was well known to Ms McMurtrie because of the regularity of it and also her own experiences with Mr RJ.
114 The plaintiff also pleaded in par 6.4 of the statement of claim that the defendant failed to devise and instruct the plaintiff as to a means by which she could turn RJ on the material date without requiring her to be in close proximity to him, so as to avoid the risk that he could threaten her physically. The plaintiff, Ms McMurtrie in her evidence stated she was
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- experienced in dealing with physically aggressive behaviour and the way to deal with it was to keep a distance from the patient. No other evidence was advanced as to how to avoid a spontaneous movement of a patient. On the evidence before me it seems that the appropriate way is to be alert to the possible sudden physical movement and to keep as much distance from the patient as possible. In my opinion this pleaded ground of negligence is subsumed in the issue as to whether the plaintiff ought to have been warned. If warned, her evidence is that she knew how to protect herself. She stated this was done by standing upright and not bending over the bed as she had done. Accordingly, this ground of negligence pleaded in par 6.4 is dismissed.
(b Causation
116 I find on the balance of probabilities that if Ms McMurtrie had known of the earlier incident of physical aggression involving Mr Siharath then this would have impressed upon her the need to exercise additional caution and it is likely that she would have exercised additional caution. I conclude that it is likely she would not have placed herself in the precarious position of bending forward close to Mr RJ in order to untuck the draw sheet. I find that if she had not placed herself so close to Mr RJ, she would not have sensed that she was about to be hit and lurched backwards suddenly in order to avoid being hit.
117 The next issue is whether the defendant is in law causally responsible for the damage. Using the formula of Gaudron J in Bennett's case (supra), the issue is whether the sudden lurching upwards and backwards by Ms McMurtrie to avoid a perceived blow by Mr RJ, when Mr RJ had made a sudden arm movement to clamp down on the draw sheet, was "within the area of foreseeable risk". That is, a foreseeable risk of injury from the defendant failing to warn Ms McMurtrie of Mr RJ's prior act of physically aggressive behaviour towards Mr Siharath during a turn procedure.
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118 In my opinion the sudden arm movement of Mr RJ, which involved an outward and downward movement to clamp down on the draw sheet, was an act of physically aggressive behaviour by Mr RJ. It was something more than mere verbal abuse. It involved a physical movement which was designed to interfere with Ms McMurtrie carrying out her duties of turning him. In my opinion it was of a nature that a risk of injury arose to the plaintiff which was "within the area of foreseeable risk" arising from a failure to warn the plaintiff, Ms McMurtrie, of an earlier act of physically aggressive behaviour. This, in my opinion, accords with the common sense approach referred to in March v E & MH StramarePty Ltd (supra) given that a number of witnesses agreed it was important that nursing assistants be informed of earlier physically aggressive acts of Mr RJ. The logical extension of this is that without such knowledge nursing assistants were placed at a disadvantage and likely to place themselves into situations where injuries could occur.
119 Accordingly, I find that the defendant was negligent by failing to warn Ms McMurtrie of the earlier incident involving Mr Siharath and this failure to warn was causative of her injuries.
(c) Contributory negligence
120 An employee will be guilty of contributory negligence if the employee ought reasonably to have foreseen that, if he or she did not act as a reasonable and prudent person, that he or she would be exposed to a risk of injury. But the conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the employee to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which the employee was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering the employee responsible in part for the damage. (See Brankstone Foundry Pty Ltd v Braistina (supra) at [15]; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492).
121 The defendant pleads four grounds of contributory negligence. The first two grounds are essentially the same, that is, Ms McMurtrie ignored instructions not to enter Mr RJ's room. However, as indicated in my findings earlier in this decision, the instruction only applied to shifts when the plaintiff was under the supervision of Ms Brown. There is no evidence of a system in place that such instructions flowed over into shifts under the supervision of other registered nurses. No evidence was led that on the shift on which Ms McMurtrie was injured such an instruction
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- applied. There was no evidence led that such an instruction was communicated to the registered nurse in charge of Ms McMurtrie on the shift in which Ms McMurtrie was injured. Accordingly I dismiss these alleged grounds of negligence.
122 The remaining two grounds of contributory negligence are essentially the same, that is, that the plaintiff, Ms McMurtrie failed to exercise reasonable care and caution when turning Mr RJ given her prior knowledge of Mr RJ's temperament and rude behaviour.
123 As acknowledged by Ms McMurtrie in her evidence, she did know of Mr RJ's temperament and rude behaviour. She also knew, as acknowledged in her evidence, of the importance of trying not to wake him when turning him at night. In my view the process of turning someone such as Mr RJ at night, given his temperament and the possibility that he may be woken by the turn, carried some risk of sudden movement by him and in such circumstances, Ms McMurtrie was negligent in placing herself so close to him when untucking the draw sheet. This is particularly as she acknowledged that aggressive behaviour could usually be effectively avoided by keeping a distance from the resident.
124 Accordingly I find that both these grounds of contributory negligence have been established.
125 The next issue is the question of an apportionment. Section 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 provides as follows:
"(1) Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such
- extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff."
126 The making of an apportionment under s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 involves a comparison both of culpability and of the relative importance of the act of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. In that case the High Court pointed out that it is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
127 In Pennington v Norris (1956) 96 CLR 10 at 16 when discussing responsibility for contributory negligence, Dixon CJ, Webb, Fullagar and Kitto JJ said:
"The only guide which the statute provides is that it requires regard to be had to 'the claimant's share in the responsibility for the damage'. As to the effect of this see generally an article by Mr Douglas Payne, 'Reduction of the Damages for Contributory Negligence'. What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the responsibility for the damage. It seems clear that this must of necessity involve a comparison of culpability. By culpability we do not mean moral blameworthiness but the degree of departure from the standard of care of the reasonable man."
128 In assessing the apportionment, I believe I should take into account that:
1. Ms McMurtrie had not previously encountered any physical acts of aggression by Mr RJ.
2. Ms McMurtrie had not been warned of the physical act of aggression by Mr RJ on a night turn incident involving Mr Siharath.
3. There seemed to be confusion as to whether Mr RJ should be turned by a draw sheet method or by himself using an overhead sling. Given the propensity of Mr RJ and other residents to object to departures to their routine procedures, I conclude that Ms McMurtrie was at a disadvantage when she entered Mr RJ's room to turn him because she did not realise that the method she was going to use was likely to be objected to by Mr RJ.
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129 On the basis of the above I conclude that I should apportion a lesser share of the responsibility for her injuries to Ms McMurtrie and conclude that Ms McMurtrie's claim ought to be reduced by 20 per cent for contributory negligence. On the basis of this reduction I give judgment for the plaintiff Ms McMurtrie based upon 80 per cent of her claim.
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