NB v Sydney South West Area Health Service
[2010] NSWDC 172
•6 October 2010
CITATION: NB v Sydney South West Area Health Service [2010] NSWDC 172 HEARING DATE(S): 5 July 2010-9 July 2010, 21 July 2010
JUDGMENT DATE:
6 October 2010JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ DECISION: 1) Verdict for the defendant.
2) The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended for a period of seven days to allow the parties, should they wish, to list the matter for further argument in respect of costs.
3) The exhibits will be retained for 28 days.CATCHWORDS: MEDICAL NEGLIGENCE - Duty of hospital to protect patient from sexual assault by hospital staff member - Plaintiff heavily medicated - Absence of record of misconduct by staff member - Absence of opportunity - Alternative rational explanation - Buffer for economic loss LEGISLATION CITED: Civil Procedure Act 2005 CASES CITED: Kondis v State Transport Authority 154 CLR 672
Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254
New South Wales v Lepore 212 CLR 511TEXTS CITED: Salmond on Torts, 9th ed (1936) PARTIES: NB (Plainitff)
Sydney South West Area Health Service (Defendant)FILE NUMBER(S): 2009/00333266 COUNSEL: Mr A J Lidden SC and Mr P Khandhar (For the Plaintiff)
Ms J Sandford (For the Defendant)SOLICITORS: Brydens Law Office (For the Plaintiff)
GILD Insurance Litigation Pty Limited (For the Defendant)
JUDGMENT
1 Between 11 February 2006 and 22 March 2006 the plaintiff was treated in the intensive care unit of Liverpool Hospital after suffering a cerebellar haemorrhage. She claimed that she suffered nervous shock when a male ward orderly employed by the defendant sexually assaulted her.
2 The plaintiff claimed damages against Sydney South West Area Health Service on the basis that it was vicariously liable for the conduct of the ward orderly and that it was under a duty of care that it breached through its negligence in allowing the circumstances to arise in which assault could be committed.
3 The defendant denied all of the claims and did not admit that the assault took place.
4 The issues were:
1 Whether the evidence established that the assault took place.
2 The extent of any vicarious liability of the defendant for the conduct of the ward orderly.
3 The extent of any direct liability of the defendant for the alleged assault.
4 The assessment of the plaintiff’s damages.
ISSUE 1 – THE ALLEGED ASSAULT
5 The following facts were not in dispute:
1 The plaintiff was treated in ICU 3 of the hospital’s intensive care unit for 38 days from 1 February 2006 until 22 March 2006.
2 During this period she was connected to a monitor by various lines and intubated with various tubes including a tracheotomy.
3 The plaintiff was at times restrained to prevent her from dislodging the lines and tubes.
4 The plaintiff was unable to speak because of the tracheotomy and because of the consequences of the stroke that she suffered.
5 At the time of her admission to the hospital she was 18 years old.
6 The plaintiff said that the sexual assault occurred during the last seven days of her admission to ICU 3. It occurred during the day because she could see daylight. She overheard a nurse ask the ward orderly if he could babysit. The nurse then left the ward. At the time the plaintiff was restrained and unable to speak. Her eyes were closed. She was naked and not covered by a sheet. The ward orderly closed the curtains and she woke suddenly and looked to see what he was doing.
7 He came to the left side of her bed and tried to place his fingers in her vagina. He failed in this attempt and, after applying antibiotic gel to his fingers, and tried again. Once more he was unsuccessful and once more he applied gel to his fingers. After he failed once more he again applied gel and on the fourth attempt succeeded in placing his fingers into her vagina for about four to five seconds. He then touched her left breast before opening the curtains and walking away.
8 The plaintiff said her eyes were initially opened but she closed them when the ward orderly looked at her. She subsequently opened her eyes again and closed them when he once more looked at her. She said she closed her eyes because she felt vulnerable and frightened. She said she remained quiet and she did not move.
9 The plaintiff gave evidence of a number of matters that provided some background to the alleged sexual assault.
10 She said that during the course of her treatment in ICU 3 there were periods of time when she was not clothed and she was left in her bed without covering. She agreed that at times she wore a hospital gown and that at times she was covered by a sheet. She stated that there were periods when she was suffering from a temperature when her gown was removed and she was left without covering.
11 The plaintiff identified the ward orderly by his first name. She was able to describe him, saying he was about 38 years old with brown short hair, balding on top. She said he was fat and that he had a beer belly. He wore a hearing aid that she thought was placed in his left ear.
12 One of the tasks that the ward orderly was required to do was to lift her back into position when she slipped down in her bed. On these occasions a nurse would call him and he lifted her under the arms. At times this was done when she was not clothed and not covered. On no occasion when she was lifted were the curtains drawn around her bed.
13 The plaintiff gave details of conduct by the ward orderly that she considered to be unusual. She believed that he was over familiar with her by asking her how she was, whether she was improving in health and her age. She said he spoke to her a lot. She did not see him speak to other patients. She said he sometimes came near to her bed and stood very close to speak to her, as if he were a friend. At times he was present when she received visitors. He spoke to female visitors but never to male visitors.
14 The plaintiff said the ward orderly at times looked up and down her body. On the occasions when she was not clothed or covered his breathing became hoarse, rasping and fast. On one occasion she overheard him say to a nurse: Did you notice when she came in she had no pubic hair and now she does? She said the nurse did not reply to this comment. The plaintiff said that prior to her admission to hospital she had received a Brazilian wax. The plaintiff said that the nurse to whom this comment was directed was about six months pregnant and regularly worked in ICU 3. Ms Fitzgerald nursed the plaintiff in March 2006 at a time when she was five to six months pregnant.
15 The plaintiff’s mother said she visited the plaintiff two to three times a day, initially for two hours at a time. Her father visited regularly but less frequently.
16 She said she first met the ward orderly within a week of the plaintiff's admission to the hospital. She saw him every day that she visited the plaintiff. She said he appeared to be very interested in the plaintiff’s condition, that he talked about her and that he provided information about her progress. He said things to her such as that the plaintiff was doing well or was improving or had been awake a lot longer that day. He stopped her in the hall way or other places in the hospital to tell her these things. He never addressed the plaintiff’s father even if he was with her at the time.
17 On one occasion she observed the ward orderly speaking directly to the plaintiff when he said: we don't use hand squeezes any more, we use a thumb up or thumbs down sign. In response the plaintiff pulled back her head and half nodded with her eyes opened. At that time the plaintiff was unable to speak.
18 The plaintiff’s mother said that none of these interactions with the ward orderly concerned her to the point where she complained about his behaviour. She agreed that he appeared to be caring of the plaintiff.
19 The plaintiff was moved to a neuro-surgical ward on 22 March 2006. She was provided with a speech or letter board because she was still unable to speak. On 2 April 2006, she used that instrument to point to letters and spell out the words sexual assault. Her mother asked her who committed the assault and the plaintiff spelled out the ward orderly’s first name. She did this in the presence of her mother and a male nurse. The nursing unit manager was informed and complaints were made to police and to the Health Care Complaints Commission.
20 The plaintiff’s mother said that the plaintiff made this complaint on the first occasion that the plaintiff had a letter board in her presence. She confirmed that the plaintiff pointed to letters that made out the words: sexual assault and the ward orderly’s first name. The plaintiff’s mother said that she knew of only one person having that first name at the hospital. The plaintiff did not say when the assault occurred and they were unable to work out precisely when the alleged assault occurred. She agreed that the plaintiff communicated to hospital staff on 2 April 2006 that the assault occurred seven days before that date.
21 The plaintiff’s mother said that the plaintiff regained consciousness after a few days in ICU 3 sufficiently to acknowledge the presence of her family before going back to sleep. Over time the periods when the plaintiff was awake became longer and her eyes were more focused. She was able to squeeze a hand to signal the word yes.
22 The plaintiff agreed that at times while she was in ICU 3 she was heavily medicated. She did not know if she had been sedated. She knew that she was placed in an induced coma and there were times initially when she lapsed in and out of consciousness. She agreed that there were occasions when she was agitated but denied that she was confused. She said that by the time of the alleged assault her level of awareness had improved and that she overheard much of the conversation that occurred around her.
23 In the course of their investigation into the plaintiff’s allegations, the police asked for an expert certificate from the plaintiff’s treating practitioner concerning, among other things, any medication she may have been on and what effect these medications would have had on her (ie, would it effect (sic) her memory and/or cause her to hallucinate)i. Dr Craig Dunlop provided the certificate. He made no mention of hallucinations. He stated:
She was initially deeply unconscious, a consequence of both the haemorrhage and intravenous sedation. She made slow neurological progress over ensuing weeks with a fluctuating conscious state. I would expect her memory of this time to be severely impaired. ii
24 In a responseiii to the Health Care Complaints Commission on 4 January 2007, the Chief Executive of the defendant stated that the plaintiff’s treating specialist was consulted and:
He advised that the brain event that she had experienced was unlikely to have any significant impact on her cognitive function.
25 The plaintiff was taken to a number of documents in which statements were recorded or complaints were made that contained inconsistent details of the assault or of circumstances surrounding the assault. She agreed that she was not always careful in the statements that she made and that there were difficulties in passing on information through a letter board before she recovered her power of speech. In some instances the plaintiff was unable to explain to the Court which of two pieces of inconsistent information was correct and in others she was unable to explain the inconsistency.
26 She agreed that she did not tell police about the conversations concerning pubic hair or the request to the ward orderly that he babysit. She said her statement to police was provided in answer to the questions that they asked. For similar reasons she told police nothing of what she had seen the ward orderly do around the ward.
27 Exhibit C comprised a number of handwritten notes made by the plaintiff in respect of the incident. Exhibit D was a statement dated 16 July 2006 that the plaintiff provided to police. Exhibit 16 was a list of questions concerning the incident. These documents supported the plaintiff’s evidence that she responded in the handwritten materials to questions put to her by police at a time when she continued to have difficulty with oral communication.
28 The plaintiff agreed that she was subsequently told that the tracheotomy was removed towards the end of her period of treatment in ICU 3. She continued to believe that it remained in place at the time of the assault but she was unsure because she was not at that stage able to feel it. She agreed that about four days prior to her transfer to the neuro-surgical ward the tube was removed and she was provided with a Hudson mask for respiratory support. She agreed that at the time of the assault she continued to receive the assistance of a ventilator but said her breathing and heart rate were not otherwise monitored.
29 Clinical notesiv maintained during the period of the plaintiff’s admission to ICU 3 recorded:
1 There were periods when the plaintiff was described as drowsy and others when she was restless or agitated , attempting and sometimes succeeding in pulling out the tracheotomy and naso-gastric tubes and other lines or tubes attached to her body. At times she was sedated in response to agitated activity.
2 The plaintiff developed rashes to which creams were applied in areas of her inner thighs v , all limbs vi , anal area vii , perineum viii , and sacrum ix .
The ward orderly’s response
30 The ward orderly denied all the elements of the alleged sexual assault. His response to the allegations when telephoned by the Human Resources Officer of the hospital was that they were crap.
31 He remembered the plaintiff only because of the allegations made against him. He maintained this claim although the plaintiff was brought into ICU 3 shortly after he started to work there, was a very young female, very ill, remained in the intensive care unit for an unusually lengthy period of 38 days and demanded much of the time of ward orderlies because of the need to lift her frequently.
32 He remembered that she suffered a stroke, that she was unconscious for a lengthy period of time and that she was unable to talk when she recovered consciousness. He said he was aware of her medical condition only generally because it was not his role to check it.
33 He agreed that he spoke from time to time with members of the plaintiff’s family, nominating her mother, younger sister and father. He agreed that he told them such things as that the plaintiff was doing better and that he explained to them the use of the thumbs up system of communication. He said he spoke to the plaintiff but not with greater frequency than to other patients. He denied that he stood close to the plaintiff’s bed to speak with her.
34 The ward orderly denied that he gave medical advice, stating that he followed directions to speak positively to friends and relatives of patients. He claimed that the comments he made to the plaintiff’s mother were made to visitors to other patients. He denied that he ever told her mother that the plaintiff had a comfortable night or that he read her medical file. He said he made general observations only in an attempt to be positive.
35 It was put to the ward orderly that his conduct when dealing with the plaintiff’s family could be regarded as an attempt at grooming the plaintiff by insinuating himself into the affairs of the plaintiff and her family. He denied that this was what he was doing or that he built up any special relationship with the plaintiff or that he was especially caring of her. He denied that he developed a special interest in the plaintiff.
36 He denied that he was ever at the plaintiff’s bedside when only her mother was present. He agreed that he told the plaintiff’s mother of the use of thumb signals as a means of communicating with the plaintiff but denied that he told her that he devised this system. He said he mentioned the system only in passing.
37 He said the plaintiff used a lot of the ward orderlies’ time because she was required to be moved many times in order to make her comfortable. When he moved her, he asked her if she was comfortable and waited for the thumbs up sign. He only ever moved her in the presence of a nurse.
38 He initially denied that he ever saw the plaintiff naked. He subsequently agreed that he probably saw the plaintiff naked but did not remember any specific occasion. He agreed that he helped a nurse by lifting the plaintiff at times when she was bathed. He denied that he looked up and down the plaintiff’s body or that he made any remark concerning her pubic hair. He agreed that such a remark would be highly inappropriate.
39 The ward orderly denied that he was aware that at times the plaintiff was covered only by a sheet for the purpose of controlling her temperature. He agreed that he was aware that she was restrained. He said she was restrained by both hands and feet and was therefore unable to move so as to throw off a sheet.
40 He accepted that, under restraint and unable to speak, the plaintiff was highly vulnerable. He said she was protected through the presence of multiple members of staff in the intensive care unit.
41 He said that there was no way that he would be allowed into a cubicle with the curtain drawn and that a nurse would investigate if the curtains were drawn.
42 He denied that he was asked to babysit the plaintiff or that he was ever left in charge of her care or ever left alone with her.
43 He said he had not heard of the reference to babysitting until it was put to him in Court. He said he would refuse to babysit a patient if asked because this was not his job and his first aid qualifications had expired. He did hear nurses ask other nurses to take over patient care.
The defendant’s response
44 The defendant responded to the claim with evidence to demonstrate that it was improbable that an assault of the kind described by the plaintiff could have occurred in its intensive care unit.
45 The defendant pointed to a number of features, including the physical layout of the intensive care unit of Liverpool Hospital and the systems and procedures in place for nursing intensive care patients, managing nursing staff rosters, the inter-relationship between nursing staff and ward orderlies and dealing with complaints. It was submitted that taken as a whole these features made it improbable that the opportunity existed for a staff member in the ward orderly’s position to have access to an intensive care patient so as to be able to commit a sexual assault.
Layout of the intensive care unit
46 Exhibit 5 was a floor plan of the intensive care unit at Liverpool Hospital. Photographs, Exhibits 6A – 6D, were taken by Ms Susan Williams, Nurse Unit Manager in the intensive care unit, in the week prior to the hearing. It was agreed that floor plan and the photographs depicted the intensive care unit and ICU 3 at the time of the plaintiff’s treatment.
47 On this basis, to avoid disruption to hospital operations in an area of critically ill patients and to avoid extending the time for hearing of the claim, I declined the defendant’s request that I undertake a view of the intensive care unit.
48 The floor plan indicated that the intensive care unit comprised three separate wards. The plaintiff was treated in ICU 3. It was equipped with 12 beds. The plaintiff occupied bed 6 for about two days and bed 8 for the remainder of the period of her admission.
49 Bed 8 was adjacent to a corridor that intersected ICU 3 and discharged through double doors. It was agreed that the corridor was busy and that the doors were used by hospital staff and for the transport of patients. It was not used by visitors.
50 Two staff stations were shown on the floor plan. Station 1 was situated in front of and in close proximity to the cubicle occupied by bed 8 and was provided for the use of ward clerks. The ward clerk’s area contained administrative equipment including a computer, phone and filing cabinet. There were two ward clerks for the three intensive care units. Station 1 was not staffed or supervised by nurses or ward orderlies and was not required to be occupied full time.
51 The plaintiff said she was able to see members of the clerical staff at the staff station close to her bed during the day.
52 Station 2 was equipped with monitors, telephones and benches and provided an area where nurses and medical staff were able to access test results and write up notes. It was not staffed full time.
53 Natural light was provided to ICU 3 from the balcony area shown on the floor plan.
54 Photograph 6B was taken at a time when the curtain around bed 8 was drawn to protect the privacy of the patient in that bed. Ms Williams said curtains were usually opened unless a procedure was being conducted.
55 Photograph 6D indicated the monitor that was in cubicle 8. It was used to record the patient’s vital signs, including heart rate. It was connected to the patient by a number of lines, including ECG dots. It was fitted with an alarm to alert staff to matters such as a high, low or irregular heart beat or when a line was disconnected.
56 All ICU patients were monitored on a 24 hour basis. Manual observations were taken only when the patient was about to be transported out of the ward. Monitors were set at the start of each shift. An alarm sounded if the heart rate varied outside the parameters set and ceased if the rate returned to normal. If the heart rate varied within the set parameter, no alarm sounded. The parameters at which the monitors were set were not noted on patient flow charts.
57 There were hand overs at 8 am, 4 pm and 8 pm and ward rounds at 8 am, with consultants visiting between 9 and 9.30 am. Hand overs involved walking around with medical staff going from bed to bed explaining what was required.
58 All witnesses agreed that ICU 3 was a very busy ward with nursing and medical staff providing care and treatment on a continuous basis to critically ill patients.
Nursing staff
59 ICU 3 was occupied by intensive care patients for whom care was required on a 1:1 basis and high dependency patients who were nursed on a 1:2 basis.
60 The plaintiff was nursed as an intensive care patient until a few days prior to her transfer to the neuro-surgical ward. In those few days she was treated as a high dependency patient. The ward orderly said he was aware of this change.
61 A nurse allocated on a 1:1 basis sat at the end of the patient’s bed at a drafting table on which the patient’s records were kept. The nurse’s role was to record the patient’s vital signs, provide medication, wash and move patients and attend to other matters of patient care. A nurse allocated on a 1:2 basis normally sat at a drafting table placed midway between the beds of the patients for whom care was being provided.
62 Nursing staff were allowed two breaks of 20 minutes and a lunch break of 30 minutes. Tea breaks could be extended from 20 to 30 minutes on rare occasions.
63 During staff breaks the drafting table was placed between 2 beds to allow nursing to continue on a 1:2 basis or a nurse unit manager could be called on to take over. In that period the curtain dividing the cubicles was drawn back. The position of the desk varied depending on the need of the patients. On occasion the nurse stood between the beds.
64 There were three Nurse Unit Managers in the unit as a whole. They were responsible for the smooth running of the unit.
65 Staff were rostered on one of four shifts that covered a 24 hour period. Some of those shifts overlapped. Rosters also indicated when staff took days off that were requested, allocated, rostered or when a day was simply taken off.
66 Ms Williams was Nurse Unit Manager, Level 3, in the Intensive Care Unit of Liverpool Hospital at the time that the plaintiff was a patient in ICU 3 between February and March 2006. She was the most senior of the Nurse Unit Managers at the time. She remained in that position to date.
67 Ms Williams prepared a schedulex, the source materials for which were flow charts and progress notes for patients during the period that the plaintiff was admitted to ICU 3. From these materials she claimed to have been able to identify the numbers of intensive care patients requiring nursing on a 1:1 basis and the number of high dependency patients who were nursed on a 1:2 basis. She then took daily staffing sheets and arrived at the numbers of nursing staff rostered for duty on each day in the three intensive care units and the number of nursing staff likely to be stationed in ICU 3.
68 Ms Williams agreed that her schedule referred to likely numbers of staff on duty on particular days. She agreed that an element of speculation was involved in the figures produced in the schedule.
69 In response to questions I raised concerning the apparent shortfall in staffing numbers for intensive care units 1 and 2 if the staff required for ICU 3 were in fact supplied, Ms Williams prepared a second schedulexi. In this schedule she attempted to demonstrate that all three units were adequately staffed in the period from 11 February to 22 March 2006. She pointed out that this exercise revealed that on various shifts on a number of days there were short falls in staff numbers and said that staff numbers were made up by sourcing staff in various ways so that there was a full complement of staff for at least part of the shift. I expressed concern that this schedule still did not deal with staff numbers satisfactorily where, for instance, there were uneven numbers of high dependency patients in some of the units. Ms Williams said that in that instance extra nursing staff would be required.
70 Ms Williams stated that there was insufficient information available to analyse the staffing situation on the afternoon shift on 16 March 2006.
71 Ms Williams said she at times completed or entered material into the nursing assignment sheets or flow sheets that were the source of the information collected into the schedules. At times they were completed by others. She agreed that the accuracy of the schedules depended on the accuracy of the information she extracted.
72 Ms Williams agreed that there were more staff in the units during the day than at night. They were non-clinical staff. She agreed that it was possible that there were only four nurses in ICU 3 in the day shifts and only two at night. This would occur at a time when there were few patients in the unit. This did not occur during the period when the plaintiff was a patient in ICU 3.
73 Ms Williams identified some of the nurses who attended the plaintiff as:
15.3.06 Kelly – last known to Ms Williams to be working in the UK.
16.3.06 Olivia Fitzgerald
16.3.06 Charmaine Arnold – last known to Ms Williams to be working at TAFE, Gymea.
17.3.06 Lisa Nikolovski
74 Ms Williams agreed that it was not possible for her to watch her staff constantly and that therefore she had to trust the nurses to perform their duties.
Ward Orderlies
75 Exhibit 4 was a job specification developed in 2006 for ward orderlies. There were two orderlies in the intensive care unit in the morning and afternoon and one at night. They were summonsed by nursing staff by pager when assistance was required. The defendant asserted that the only time a ward orderly was in a cubicle occupied by a patient was in the presence of the nurse and at the nurse’s request. Ms Williams agreed that a ward orderly might enter a bed area to wait for a nurse. This was not unusual but nor was it common and the curtain was always opened.
76 Exhibit 14 was a memo prepared by Ms Williams in response to a police request concerning the role of a ward orderly.
77 The ward orderly agreed that the job specification made no reference to reporting on patient progress to their relatives and visitors. He said he was directed to deal in a positive way with patients’ visitors and that his comments to the plaintiff’s family were made with this direction in mind.
78 The ward orderly said that his only contact with patients involved moving or turning them or transporting them. On occasions he held a patient while a nurse undertook a sponge bath. This rarely occurred because bathing was normally undertaken by two nurses. He said he only ever attended to a patient at the direction of a nurse. He said he was never left alone with a patient except when a nurse had to go outside for 10 to 30 seconds to retrieve an item. On such occasions he stood half way in and at the curtain surrounding the bed.
79 Ms Williams said that, if she had seen the ward orderly enter a bed space and close the curtains, she would immediately go to the area and find out why he was there. She said she received no complaints concerning the ward orderly.
80 She agreed that it was inappropriate for an orderly to become friendly with a patient. She said orderlies might bring families into the unit if they were short staffed. They were encouraged to be pleasant, appropriate and professional. They were not instructed to be upbeat or positive. It was not appropriate for an orderly to comment on the patient’s condition to the family.
81 Ms Fitzgerald was an experienced clinical nurse specialist. She claimed not to remember nursing the plaintiff. She did not remember the ward orderly.
82 She did not remember any inappropriate comment having been made by a ward orderly in March 2006. She never asked an orderly to babysit a patient.
83 She said ward orderlies were only used when required. They were contacted by pager and they were never left alone with a patient. They assisted with turning patients when they were being washed and helped change linen. Patients were washed at anytime of the day, usually in the morning or on a night shift.
84 Ms Fitzgerald said it would be unusual for a ward orderly to approach a patient. She never saw an orderly attending to a patient alone. Had she seen observed such an event, she would ask the ward orderly what he or she was doing.
85 She agreed that an orderly should not be friendly with a patient, tell a family that the patient was doing well or say anything to family members about the patient’s condition.
86 In 2006 Ms Nikolovski was a first year registered nurse. She made two entries into the records on 17 March 2006 when she was on the 07.30 to 15.30 shift.
87 She claimed to have no memory of the plaintiff or the ward orderly. She did not remember the ward orderly making any comment or remark concerning the plaintiff.
88 She denied that she ever asked a ward orderly to babysit. They were not qualified and it would not cross her mind. She had never seen this done.
89 She assumed when she saw a ward orderly walk through ICU that it was in response to a pager. There was frequently only one orderly who was therefore in great demand.
90 She would be concerned if an orderly was overly friendly with a patient or if he or she pulled a curtain around a bed.
91 She agreed that it was inappropriate for orderlies to talk to a patient’s parents and tell them that the patient was doing well. She would not be surprised if the ward orderly exchanged pleasantries over the 38 day period of the plaintiff’s admission to ICU 3.
92 Ms Nicholson was a clinical Nurse Unit Manager between 2005 and 2007 working in the intensive care unit. By 2006 she had held this position for 15 years. She regularly took the 1300 – 22.30 shift and other shifts at times.
93 She said ward orderlies were never left in charge of patients. She said nurses were accountable for their patients and for this reason they followed a handover process when another nurse took over the patient’s care.
Patient privacy
94 The plaintiff rejected the proposition that the curtains around her bed were drawn to preserve her privacy whenever she was not clothed or covered. She claimed that she overheard a nurse saying that it was: too much of a pain to cover her. She claimed that she was frequently left naked and that, while naked, she was frequently restrained and with the curtains around her bed left open.
95 The plaintiff’s mother said that she wore very little clothing at times when she visited her.
96 The ward orderly denied that he ever saw a patient left unclothed and visible to persons within the intensive care unit. He denied that there was a practice in the unit of leaving a patient naked with the curtains opened.
97 He was unaware of the defendant’s response to the Health Care Complaints Committee concerning the practice of removing the clothing of a patient with a raised temperature.
98 Ms Williams said the plaintiff had a temperature at times and might have been nursed when covered only by a sheet. She said she was never left uncovered unless she was being washed or examined.
99 Ms Williams denied that patients were left naked in full view of other persons in the unit. She said this was never the practice, the only exception being in situations of life threatening emergency where treatment such as, CPR, was being performed.
100 Exhibit 13 was Ms Williams’ response to Ms McArthur in November 2006 following an inquiry from the Health Care Complaints Commission. She said patients normally wore white gowns, although at times they were unable to wear underwear because of the lines and tubes attached to various parts of their bodies. If they were febrile, the gown might be removed and the patient covered by a sheet only. The gown might also be removed if the patient was unstable or was connected with numerous lines or drains that required constant monitoring.
101 She discussed the complaint referred to by the Health Care Complaints Commission in general terms at a ward meeting.
102 No questions were asked of Ms Fitzgerald, Ms Nikolovski or Ms Nicholson concerning their practices when nursing a patient whose gown was removed for therapeutic purposes or their recollection of whether the plaintiff was left without clothing or covering with the curtain pulled back.
Issue 1 - Findings
103 I considered that the plaintiff was a credible witness and that she genuinely believed that she was the victim of a sexual assault. I was not persuaded that the inconsistencies in the histories provided by the plaintiff indicated that the plaintiff was not truthful in her evidence.
104 I considered it probable that the difficulties under which she was labouring at the time in communicating by means of a letter board resulted in misunderstanding or misrecording of details of the complaint. I accepted that the statements provided to police responded to the questions asked and prompts provided to the plaintiff.
105 I accepted that it was not the defendant’s universal practice to nurse patients when unclothed and uncovered. However, I find that the plaintiff’s medical condition was such that it was probable that at times her hospital gown was removed. The clinical notes recorded that she was febrile on occasions and that she was connected to multiple lines and tubes creating the difficulties mentioned by Ms Williams in nursing her when she wore a gown. The notes also regularly recorded that the plaintiff was agitated and restless with the result that the lines and tubes were pulled out or dislodged and it was necessary to apply restraints to her arms and at times to all four of her limbs.
106 I was satisfied therefore that there were times when the plaintiff was left uncovered and with the curtaining around her cubicle drawn back so that her privacy was not protected.
107 In these circumstances I rejected the ward orderly’s denial that he saw the plaintiff naked. I was satisfied that he saw her unclothed and uncovered at times when the sheet was thrown back by her restlessness and agitation and when he assisted nursing staff to turn, lift or bathe the plaintiff.
108 The ward orderly initially claimed to have general knowledge only of the plaintiff’s condition but agreed that he made comments to her family that went so far as telling them that she was improving and to explaining the hand signals used by the plaintiff. All nursing witnesses agreed that such comments were inappropriate. They did not accord with his job specification and I accepted Ms Williams’ evidence that the ward orderly was not instructed to deal in a positive or upbeat manner with patients’ families. In this respect his evidence was unsatisfactory and indicated that he overstepped the boundaries of his role in patient care.
109 Although I found that the plaintiff was truthful in her evidence and that there were some aspects of the ward orderly’s evidence that were unsatisfactory, I accepted the submissions of the defendant that it was probable that the plaintiff was mistaken when she claimed that she was sexually assaulted for the reasons that follow.
110 The ward orderly was a man of mature age and life experience. There was no evidence that he had any prior criminal history or committed any similar act of misconduct.
111 His evidence concerning the part he played in caring for patients was consistent with that of the defendant’s nursing staff. It was apparent that the ward orderlies were busy and that they were much in demand to assist nursing staff. Thus, he had minimal opportunity to engage in the conduct alleged by the plaintiff.
112 The following evidence of the management and operation of the intensive care unit, including ICU 3, also established that it was improbable that the ward orderly had the opportunity to assault the plaintiff and that if he opportunistically attempted to do so, he was at extreme risk of discovery:
1 Notwithstanding the shortfalls in the schedules prepared by Ms Williams, I was satisfied that the intensive care unit, including ICU 3, was an especially busy area of Liverpool Hospital and that medical, nursing and other staffing levels were higher than those in wards where less seriously ill patients were nursed. In addition, the cubicle occupied by the plaintiff at the time of the alleged assault was positioned close to a staff unit and adjacent to a corridor available for use by persons working in all of the three intensive care units.
2 I accepted Ms Nicholson’s evidence that curtaining in the wards was pulled back to the fullest extent possible in order to meet the imperative that patients remained in full view and constantly monitored. It was improbable therefore that a ward orderly would be permitted to close the curtaining without challenge.
3 I considered it improbable that in such circumstances a ward orderly would not be noticed if, unsupervised and alone, he or she closed the curtains around a cubicle and remained in it for a sufficient period of time to commit an assault of the type described by the plaintiff.
4 The patients for whom the intensive care nurses were responsible were critically ill. They required very high levels of nursing and medical attention. There was insufficient evidence to persuade me that a nurse would transfer such a heavy burden of responsibility to an unqualified and untrained member of the hospital staff.
113 Although there was evidence that the plaintiff suffered no cognitive impairment as a result of her illness, her assertion that she clearly remembered the assault was undermined by the following evidence:
1 She was heavily medicated and sedated during the period of her admission to ICU 3. Clinical notes indicated that at times she was confused, restless and agitated or that she lapsed into unconsciousness or was drowsy. The plaintiff herself said that she slept for much of the time that she spent in ICU 3. It was regularly recorded that the plaintiff was non-compliant with instructions because of incapacity, confusion or lassitude.
2 Dr Dunlop’s opinion of the extent to which the plaintiff’s memory of her period of recovery while in ICU 3 was impaired was based not only on his medical qualifications but on his treatment and direct observation of the plaintiff during that period. I rejected therefore the contention of the plaintiff that his opinion did not support the proposition that the plaintiff was confused.
3 Criticism, on the basis that she was not a neurologist, was directed at the opinion expressed by Dr Brown, psychiatrist. She was not cross examined, however, to test her opinion that the brain injury suffered by the plaintiff or the sedation under which she was placed could result in hallucinatory experiences.
114 I was concerned on reading the clinical notes dealing with the application of creams to the perineal area that no evidence was taken from the plaintiff concerning the extent to which she recalled this part of her treatment and whether it suggested an alternative rational explanation of her claim of sexual assault. I therefore relisted the matter to allow the parties to address this part of the evidence. They each declined to call further evidence but the issue was addressed in written submissions.
115 The plaintiff submitted that this material was of no significance to the determination of her claim because it was likely that she would have been able to distinguish between the application to a rash or bed sore and sexual assault in the nature of digital penetration. I did not necessarily accept this proposition having regard to the evidence of the plaintiff’s levels of sedation and confusion.
116 The defendant’s response was that it did not advance a proposition that the plaintiff mistakenly perceived that she was sexually assaulted because she received intimate body care. It returned to its primary response that the plaintiff was mistaken for the reasons of absence of opportunity and likely confusion or hallucination to which I have already made reference.
117 In summary, I took into account the evidence concerning the extent to which the plaintiff was medicated, the absence of any prior record of crime or misconduct by the ward orderly, the absence of opportunity for the ward orderly to commit the assault and the presence of an alternative rational explanation suggested by the treatment required to the plaintiff’s perineal area, in concluding that I was not satisfied on the balance of probabilities that the plaintiff was sexually assaulted in the manner alleged.
ISSUE 2 – VICARIOUS LIABILITY
118 The defendant relied on the authority of New South Wales v Leporexii and the authorities referred to in that decision and those determined since it was handed down to argue that, if the assault occurred, it involved criminal conduct that was outside the scope of the terms of the ward orderly’s employment so that it was not vicariously liable to the plaintiff.
119 On reading those authorities I concluded that this submission was well founded.
120 In Lepore Gleeson CJxiii, noting the difficulties presented in resolving borderline cases, said:
The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition 1907 xiv and in later editions xv ; an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
121 Justice Kirbyxvi referred to the Salmond test as the classic formulation.
122 I did not consider that this was a borderline case. Sexual assault of the nature alleged by the plaintiff could not on any basis be regarded as a mode, proper or improper, of undertaking the authorised acts involved in fulfilling the role of a ward orderly.
123 The conduct of the type described by the plaintiff could be regarded only as an independent criminal act.
124 I find that the defendant was not vicariously liable for conduct of the nature alleged.
ISSUE 3 – THE DEFENDANT’S DUTY OF CARE
125 The duty owed by a hospital to its patients falls within the limited class of those recognised as non-delegable. This classification acknowledges the extra responsibility imposed on hospital authorities to take reasonable care to protect patients from the risk of harm.
126 This level of responsibility was described by Mason J in Kondis v State Transport Authorityxvii as a special duty that:
… arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.
127 The defendant, relying on Modbury Triangle Shopping Centre Pty Ltd v Anzilxviii and subsequent authority applying its principles, submitted that it should not be held liable for the criminal conduct of the kind alleged on the part of the ward orderly.
128 In Modbury Gleeson CJ made it clear that the circumstances might arise when a court might find a duty to take reasonable steps to protect others against the risk of harm from the criminal conduct of third parties. A similar approach was taken by Gaudron Jxix when she said that the duty of care of this kind arose because of special vulnerability on the one hand and special knowledge combined with an assumption of responsibility on the other.
129 Similarly, in Lepore, Justice Gaudron saidxx that an employer might be held directly liable if there was an element of fault on the employer’s part that increased materially the risk of criminal conduct on the part of an employee.
130 On the basis of these authorities I concluded that the criminal nature of the conduct alleged did not of itself exclude the defendant from liability. The question to be considered was whether the defendant was at fault in materially increasing the risk of criminal conduct of the type claimed by the plaintiff.
131 There were some criticisms that could be made of the defendant relation to its recruitment and complaints handling processes.
Recruitment processes
132 The defendant relied on its established recruitment processes to claim that it had taken reasonable care in the employment of the ward orderly.
133 The ward orderly was working as a general assistant at a public school when he applied for a position as a ward orderly at Liverpool Hospital. The principal of the school was a referee for him when he made his application. In the course of his application for employment he consented to the hospital’s undertaking a criminal record check. He denied that he had ever been charged or convicted of a criminal offence.
134 He was offered the ward orderly position on 13 January 2006. He read and signed the Code of Conductxxi and started work in mid-January 2006. He attended for two days of orientation when he was taken through the Code, hospital policy, the layout of the hospital, the expectations of him, lifting practice and other general matters. He was guided in this process by the Chief Ward Orderly, Geoff Ashby.
135 On learning of the plaintiff’s allegation, the defendant transferred the ward orderly to a position that did not involve contact with patients. He did not return to work in the intensive care unit or any other unit involving patient contact. He left the hospital of his own accord in 2007.
136 Ms Goulden was the Acting Assistant Director of Human Resources, employed by the defendant. She previously occupied the position of Deputy Human Resources Manager at Liverpool Hospital. She was not involved in the recruitment process under which the ward orderly was employed. The Chief Ward Orderly, Mr Ashby, who was no longer employed by the defendant, was responsible for this process. Mr Ashby was not called to give evidence.
137 Ms Goulden described the process that she understood was adopted in the recruitment of the ward orderly. This involved assessment of his application, interview by a three person committee, the preparation of their report, checking of references, the finalisation of the report and signing off on the decision to offer employment. An offer of employment was then forwarded to the ward orderly. With this offer he was provided with a copy of the Code of Conduct that he was required to read, sign and return with his acceptance of the offer.
138 Ms Goulden agreed that the committee’s report was not on the ward orderly’s file. She said that the report was placed on a separate file that dealt with all other applicants and that it was the defendant’s practice to destroy such files two years after they were created.
139 After reviewing the documents in the ward orderly’s file, Ms Goulden said that it appeared that appropriate reference checking had been undertaken.
140 She accepted that the ward orderly provided the names of three referees, two of whom appeared to be personal friends and one the principal of the school at which he was employed at the time of his application. She agreed that friends were unreliable referees. She also agreed that the reference check form completed by Mr Ashby was deficient in a number of respects. In particular, the form appeared to record the comments of all three referees without making it clear to which referee the comments could be attributed.
141 The process also involved a criminal record check, which in the ward orderly’s case was clear. Ms Goulden understood that the criminal record check was always directed at working with children.
142 She said a Prohibited Employment Declaration (PED) form signed by the ward orderly should have been in the ward orderly’s file. This form apparently dealt with child related offences regardless of whether charges were brought. She was surprised that this form was not on the file.
143 Mr Parr was a Team Leader, External Relations and Employment Screening Unit, Department of Health. His evidence was directed at the screening checks undertaken on potential employees. He was not personally involved in the checks undertaken in respect of the ward orderly.
144 The process involved obtaining consent and a signed Prohibited Employment Declaration from the prospective employee. The individual’s details were submitted through a series of State and Federal Government agencies for checking against data bases that they maintained.
145 The checks involved charges, convictions of assaults, sexual or otherwise, involving persons under the age of 18 years,. They also were directed at convictions relating to matters releasable under the Crimes Act, such as theft, drink driving, and assaults, at apprehended violence orders issued to protect under 18 year olds and allegations made by under 18 year olds against a person in the course of his or her employment.
146 It was necessary to obtain both the prospective employee’s consent and the PED. It was therefore probable that the ward orderly completed a PED although it was not in his file.
Complaints handling
147 The Nurse Unit Managers, Ms Williams and Ms Nicholson, stated that they maintained open door policies that allowed the nurses for whom they were responsible to bring any concerns they might have to their attention. They said that they were also responsible for the conduct of nursing staff and for ensuring that they complied with their obligations to their patients.
148 Both agreed that it was not possible to watch over all nursing staff at all times and that it was necessary to repose a measure of trust in the nurses for whom they were responsible.
149 Ms Williams said she expected problems or inappropriate conduct to be reported to a team leader or one of the three nurse unit managers. She was confident that nursing staff would report a ward orderly if he or she was acting inappropriately.
150 Had she been told that the ward orderly was making inappropriate comments, she would speak with him and to the person who made the complaint. Depending upon the severity of the conduct involved, she might report it to more senior management or the ward orderly’s manager.
151 If a nurse asked a ward orderly to babysit, she would be reprimanded. She hoped that misconduct of this nature would be reported.
152 Ms Nicholson similarly said that she received no complaint concerning the ward orderly.
153 Ms Williams said she first heard of the allegation when she was told of the intention to move the ward orderly from the unit.
154 In April 2006 Ms La-Stacy Baramy was Acting After Hours Manager at Liverpool Hospital, responsible for bed allocation. On 2 April 2006 she received a report of an alleged sexual assault on a patient. She went to the neuro-surgical ward and spoke to a staff member who said the plaintiff’s mother wished to make a complaint. She then spoke to the plaintiff’s mother, took details from her and told her that she would pass on details of the complaint to an appropriate staff member.
155 There were aspects of the circumstances of the report to Ms Baramy that indicated that complaints were not always handled with the ease and speed suggested by the defendant.
156 A clinical notexxii read:
2/4/06 2000 hrs NURSING: Pt’s sister brought to me by AIN (?) room 5-8 Pt’s sister wanted to add to the report made by her Mother to AM staff.
157 Ms Baramy’s records indicated that she received the report at 1500 hrs after having been told by a staff member that the plaintiff’s mother wished to make a complaint.
158 Ms Baramy forwarded details of the complaint to Ms McArthur, Patient Liaison Officer, who in a further email dated 3 April 2006xxiii sent after she spoke to Ms Baramy said:
… from what the staff member advised, La got the impression that the ward staff had know about it for “awhile” but not done anything about it.
159 Ms Baramy said she did not remember the terms of the conversation with Ms McArthur. She said that her memory of events was poor. She agreed that she could have received the report of the assault from someone other than the plaintiff’s mother. She was sure of the details of the assault as they were related to her because she wrote them down.
160 Ms McArthur remembered some details of the complaint and she obtained other details from her file. She denied any knowledge of a suggestion that the staff were aware of the assault before the plaintiff informed her mother.
161 Ms McArthur agreed her memory of events was poor. She did not remember the telephone conversation with Ms Baramy. She agreed that Ms Baramy must have told her that ward staff knew of the allegation for “awhile” because that word was placed in quotation marks in her email. She did not know the length of the period indicated by that term. She believed that the staff referred in her email to were those in the neuro-surgical ward.
162 She agreed that it was possible that staff knew of the allegation before it was reported. She could not explain why staff failed to report the incident when they first learned of it.
Issue 3 - Findings
163 There were obvious deficiencies in the reference checks undertaken at the time that the ward orderly was employed. This was acknowledged by Ms Goulden.
164 Although Ms Williams and other nursing staff said they would take action or report inappropriate behaviour by a ward orderly, the Court was left without the benefit of evidence of who was directly responsible for the ward orderly and the method by which he was supervised. There was no evidence of any assessment of his conduct or the quality of his work notwithstanding his recent recruitment.
165 I considered that these were significant shortcomings in circumstances where the ward orderly was recruited to perform a role in which he had no prior experience and in an area of the hospital that was busy and involved situations of crisis in dealing with patient care. The ward orderly was put into a position where he was dealing with patients who were seriously ill, vulnerable and highly dependent. The plaintiff’s case was a clear example. She was restrained, unable to communicate and at times naked.
166 The evidence indicated that the hospital’s complaints handling systems did not always operate to the levels suggested by the defendant’s witnesses.
167 The remark concerning the plaintiff’s pubic hair was not reported although it was highly inappropriate. No member of staff appeared to notice the familiarity with which the ward orderly dealt with the plaintiff’s family although they were unanimous in their opinions that it was inappropriate.
168 The allegation of assault was reported by the plaintiff’s mother after she asked a nurse to direct her to a person to whom a complaint could be made. It was likely, having regard to the emails that passed between Ms Baramy and Ms McArthur, that staff in the neuro-surgical ward were aware of the allegations at an earlier point in the day. Staff members appeared not to consider that it was their responsibility to report the allegations although they were very serious in nature.
169 Against these criticisms and the already noted shortcomings in the schedules prepared by Ms Williams, there was evidence that staffing levels within the intensive care unit were very high. For most of the time that the plaintiff was in ICU 3 she was watched and monitored on a 24 hour basis by one nurse with responsibility solely for her care.
170 There was evidence that intensive care nurses were supported and closely supervised by three nurse unit managers.
171 Although it was conceded by Ms Williams and Ms Nicholson that it was not possible to maintain a constant level of supervision of all nursing staff within ICU 3, I considered that it was not reasonable to require the defendant maintain supervision to this standard of perfection.
172 I considered that the high levels of staffing and the 24 hour watching and monitoring regime was a more than reasonable response to the foreseeable but minimal risk that a member of the defendant’s staff would behave in the manner alleged against the ward orderly by the plaintiff.
173 I find that the defendant was not in breach of its duty of care to the plaintiff.
ISSUE 4 - ASSESSMENT
Injuries
174 The plaintiff said that following the alleged assault she was upset, angry and very frightened. Whilst in the neuro-surgical ward she was moved to her own room to allay her fears.
175 When she was discharged to her home she returned to sleeping alone in her room. She complained of sleep disturbance and nightmares involving the ward orderly. Her parents placed a baby monitor in her room for the first few weeks after she came home. She suffered distressing intrusive thoughts concerning the assault.
176 The plaintiff received some counselling. She said it was not helpful because she did not enjoy revisiting the circumstances of the assault. She agreed, however, that her symptoms of moodiness were improved and the frequency of intrusive thoughts was decreased to about once per week. Her sleeping pattern was improved but she still suffered from sleep disturbance. Her self-confidence was initially affected but this was now improving.
177 Prior to her stroke the plaintiff worked as a telemarketer, having completed her high school studies and received her higher school certificate. She intended to train as a nurse/midwife. She enrolled in a nursing degree course but at the end of 2009 she was assessed by the Commonwealth Rehabilitation Service as unsuitable for this career because of the disabilities resulting from the stroke. She has since transferred to a Bachelor of Science course in nutrition and food with the aim of training as a dietician. She said she was satisfied that this was a career that she was physically capable of pursuing.
178 The plaintiff’s mother said that the plaintiff began to speak just before she was moved to the rehabilitation centre at Braeside. Her speech improved there and when she came home. She said the plaintiff spoke little of the assault until she was discharged to her home.
179 The plaintiff’s mother said that on returning home the plaintiff went back to her own bedroom. She suffered with nightmares and cried regularly. The nightmares concerned the ward orderly. A baby monitor was placed in her room to alert her parents when the plaintiff became distressed. After three to four weeks the monitor was replaced with a bell that was used with reducing frequency over a period of six months. However the plaintiff continued to suffer from disturbed sleep for a period of 12 months from the date of discharge from hospital.
180 The plaintiff’s mother said that until about 2008 the plaintiff refused to be left alone outside the home and engaged in no social activity. Since 2008 her condition improved so that she now goes out socially but she was less confident than prior to her stroke.
181 She said the plaintiff continued to complain of nightmares about the ward orderly to the present date. She said they occurred about every second week. She was receiving no ongoing treatment for the consequences of the stroke.
182 The plaintiff’s mother was unaware of the assessment of the plaintiff by the Commonwealth Rehabilitation Service. She agreed that the plaintiff had several assessments of her physical capacity for a number of purposes, including her application for a disability pension.
183 Counselling was provided by Ms Bedon who provided progress reports in April, August and October 2007xxiv. She reported symptoms experienced by the plaintiff including anxiety, panic attacks, insomnia, anger at the hospital for failing to protect her, concentration and memory difficulties, depression and intrusive memories. Ms Bedon reported that the plaintiff’s symptoms improved with counselling but that they continued to affect and distress her at the time that counselling ceased in October 2007.
184 Dr Giarratano interviewed the plaintiff in October 2007. She confirmedxxv that the plaintiff at that time continued to suffer from symptoms fear, intrusive thoughts, distressing images, anger, sleep disturbance and difficulty revisiting the incident. She reported that the plaintiff’s symptoms were reduced but were continuing. She described the plaintiff as sad and teary at times during the course of the interview. Testing demonstrated severe depression and severe anxiety.
185 Dr Giarratano diagnosed chronic Post Traumatic Stress Disorder for which the plaintiff required further counselling. She noted that the plaintiff was anxious and avoidant of males so that it was unclear how this would affect her employment in future. She said that PTSD left sufferers vulnerable to relapse at times of stress and to distress and, if exposed to further traumatic events, predisposed to distress and psychiatric disturbances such as panic attacks, depression and phobia.
186 Dr Parmegiani reportedxxvi in June 2009 that the plaintiff prior to this incident was healthy and physically active. There was no history of prior psychological disturbance. He noted that the plaintiff experienced a difficult period after the alleged assault during which she was hypervigilant and withdrawn and suffered from anxiety and sleep disturbance with nightmares and with intrusive memories. He said these symptoms were characteristic of PTSD.
187 He reported that there had been a gradual improvement in the plaintiff’s symptoms with relapses when it was necessary to talk to doctors or lawyers for the purposes of the litigation. By June 2009 the plaintiff had secured a scholarship and was studying nursing part time at University. She was in a satisfactory relationship with normal levels of libido. She was able to concentrate and was intelligent and motivated.
188 Dr Parmegiani’s opinion was that the plaintiff was likely to suffer from residual problems in feeling relaxed near men, particularly ward orderlies in a hospital system. He said the plaintiff was psychologically resilient and her positive attitude resulted in a significant decrease in her symptoms of PTSD. He did not think the consequence of the disorder would affect the plaintiff’s career path, aside from the potential difficulty in dealing with ward orderlies. He considered that the plaintiff did not require treatment or medication.
189 Dr Brown interviewed the plaintiff in October 2009 and expressed opinions similar to those of Dr Parmegiani. She reportedxxvii the plaintiff’s symptoms of distress, anger and fear immediately following the incident. She noted that there were ongoing symptoms of anger and fear, concern when in the presence of men that she did not know, intrusive memories, nightmares, some diminution in appetite and irritability in crowded situations. She also noted that the plaintiff enjoyed her relationship with her partner and their intimacy and her libido was unaffected.
190 Dr Brown reported that the plaintiff displayed obvious distress when she discussed details of the assault but that she saw no sign that the plaintiff was anxious, depressed, angry or that she suffered from any cognitive disorder. Based on the information provided by the plaintiff she diagnosed a mild form of PTSD from which there had been full remission. She said the plaintiff’s long term prognosis was excellent. She noted that the plaintiff coped emotionally with her stroke by maintaining a positive outlook, anticipating that ultimately she would fully recover from its effects.
191 Responding to the question of whether the stroke itself had affected the plaintiff’s psychological condition, Dr Brown said that she did not accept at face value the plaintiff’s denial that she was emotionally affected by the stroke. She accepted that prior to the stroke the plaintiff was young and healthy and that its consequences were likely to have affected her mood and contributed to some degree to her symptoms of PTSD.
192 Dr Brown agreed that the plaintiff required no further treatment. She agreed that ongoing sequelae included an element of anxiety in the presence of unfamiliar males and vulnerability to deterioration in her condition if she suffered a further incident of sexual assault.
193 I assessed the plaintiff as a person of resilience and determination in overcoming the consequences of the stroke and it was apparent from her evidence that she was not consciously dwelling on the psychological effects of the alleged assault. The defendant relied on these features to argue that the consequences to the plaintiff’s quality of life were moderate and to her income earning capacity they were minimal.
194 Had I found that the plaintiff suffered a sexual assault in the circumstances she described, I would accept that she was taken advantage of by a man when she was entirely helpless and in a potentially life threatening situation. She initially suffered from many distressing symptoms, some of which continued to affect her. There was no doubt that the plaintiff’s positive attitude assisted her considerably in overcoming the psychological consequences of such a terrifying ordeal. Having regard to those circumstances and to their consequences I regarded as reasonable the amount of the compensation proposed by the plaintiff in the sum of $100,000.
195 The plaintiff also refused to allow the consequences of her experience of the stroke and the assault to deter her from attempting to pursue her chosen career in nursing. To date it has not been possible to continue with that career path because of the physical disabilities that continue to affect her. It was not suggested that the change of direction to a career as a dietician of itself resulted in any diminution in income earning capacity. Further, Dr Parmegiani expressed the opinion that the plaintiff’s future employment was unlikely to be affected by the PTSD from which she suffered.
196 There was support therefore for the defendant’s position that the evidence demonstrated no diminution in income earning capacity. However, I took into account the opinions of Dr Giarratano and Dr Brown concerning the continuing vulnerability of the plaintiff to relapse or the development of psychological disorder in the event that she experienced a further stressful incident.
197 I accepted that this vulnerability had the potential to affect the plaintiff’s income earning capacity and that as a result compensation in the nature of a buffer of $50,000 was warranted.
ORDERS
198 Verdict for the defendant.
199 The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended for a period of seven days to allow the parties, should they wish, to list the matter for further argument in respect of costs.
200 The exhibits will be retained for 28 days.
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i
Exhibit 1.100
ii
Exhibit 1.99
iii
Exhibit E
iv
Exhibit 1.38-399
v
3.3.06, 6.3.06, 19.3.06
vi
9.3.06
vii
16.3.06
viii
17.3.06
ix
18.3.06
x
Exhibit 10A
xi
Exhibit 10B
xii
212 CLR 511
xiii
at [42]
xiv
at 83
xv
eg Salmond on Torts, 9th ed (1936) at 94-95
xvi
Lepore at [307]
xvii
154 CLR 672 at 687
xviii
205 CLR 254
xix
at [42]
xx
Lepore at [126]
xxi
Exhibit 3
xxii
Exhibit 1.133
xxiii
Part Exhibit J
xxiv
Exhibits K1, K2 and K3
xxv
Exhibit B
xxvi
Exhibit A
xxvii
Exhibit 1.13
0
0
1