O'Donovan v Western Australian Alcohol and Drug Authority [No 2]

[2013] WADC 13

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   O'DONOVAN -v- WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY [No 2] [2013] WADC 13

CORAM:   STONE DCJ

HEARD:   8-10, 15-19, 22-23 & 26 OCTOBER 2012

DELIVERED          :   1 FEBRUARY 2013

FILE NO/S:   CIV 148 of 2007

BETWEEN:   ANNE O'DONOVAN

Plaintiff

AND

WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY
Defendant

Catchwords:

Employer - Negligence - Stress at work - Claim for damages for psychiatric injury - Claim for exemplary damages - Duty of care of employer - Whether reasonable person in position of employer would have foreseen the risk of psychiatric injury to the employee - Breach of duty - Breach of contract - Psychiatric injury alleged to have been sustained in course of employment - Issue estoppel as to cause of psychiatric injury

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     Mr G Droppert & Mr M L Temple

Defendant:     Mr D R Clyne

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Jarman McKenna

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424

Baltic Shipping v Dillon (1993) 176 CLR 344

Chapman v Hearse (1961) 106 CLR 112

Czatyrko v Edith Cowan University (2005) 79 ALJR 839

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Hadley v Baxendale (1844) 9 Exch 341, (1854) 156 ER 145

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

Hatton v Sutherland [2002] 2 All ER 1

Hegarty v Queensland Ambulance Service [2007] QCA 366; (2007) Aust Torts Rep 81-919

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377

New South Wales v Fahy [2007] HCA 20

Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330

Tame v New South Wales (2002) 211 CLR 317

The State of Western Australia v Watson [1990] WAR 248

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Wenham v Ella (1972) 127 CLR 454

Whitfeld v de Lauret & Co Ltd (1920) 29 CLR 71

Wyong Shire Council v Shirt (1980) 146 CLR 40

STONE DCJ: 

Introduction

1. In early 1993 the plaintiff, Ms Anne Helen O'Donovan was employed as a registered nurse by the defendant, Western Australian Alcohol and Drug Authority at its detoxification clinic in East Perth.  On 26 November 2004 Ms O'Donovan did not return to work because of illness.  In December 2004 she lodged a workers' compensation claim against the defendant for 'a sequence of stressful administrative actions imposed on [her] by her employer' and its management during the period May 2004 to November 2004.

2. On 10 November 2005 WorkCover Review Officer Spivey handed down his decision following the review hearing at the WorkCover Conciliation and Review Directorate of Ms O'Donovan's application for weekly payments for workers' compensation for total incapacity together with statutory allowances under the Workers' Compensation and Injury Management Act 1981 (WA).

3. In determining the WorkCover application, WorkCover Review Officer Spivey made the following findings:

   (a)Ms O'Donovan suffered a psychiatric illness;

   (b)her psychiatric illness arose in the course of her employment in the period leading up to 16 June 2004 as a result of three problems, namely, the work roster, the enforced leave issue and an expectation of being disciplined;

   (c)her psychiatric illness incapacitated her for work from 28 November 2004 and at least up to the date of decision being 10 November 2005;

   (d)the defendant was required to pay her medical and associated expenses resulting from treatment of her psychiatric illness (statutory allowances).

4. Ms O'Donovan subsequently claimed damages for psychiatric injury suffered in the course of her employment by reason of the defendant's negligence and breach of its statutory obligations and contract of employment.

5. The parties agreed that WorkCover Review Officer Spivey's findings gave rise to an issue estoppel in the proceedings for damages such that up to 10 November 2005 there were no issues in dispute as to causation and Ms O'Donovan's psychiatric injury and past losses but there remained to be determined causation and psychiatric injury incapacity after 10 November 2005, liability, general damages (and exemplary damages) and future losses.

The pleadings

1. The Amended Statement of Claim raised five matters which were alleged to constitute breaches of duty by the defendant:

   (i)enforced leave;

   (ii)unfair roster changes;

   (iii)work environment;

   (iv)Maxolon medication incident and victimisation;

   (v)Valium dosage omission incident and victimisation.

The evidence

Anne Helen O'Donovan

1. Ms O'Donovan was born on 10 March 1955 in Auckland, New Zealand.  After leaving school at the age of 15 1/2 years she went into nursing.  Between 1972 and 1975 she underwent hospital‑based training as a psychiatric nurse.  Between 1975 and 1990 she worked in New Zealand, London and Sydney as a psychiatric nurse, a general nurse or in some other non‑nursing employment.  She travelled extensively.  She married in 1984.  Her son Ryan was born in 1987 and her daughter Jade was born in 1989.

2. In early 1990 whilst working in Sydney she was assaulted by a patient and she sustained a neck injury.  She was on workers' compensation when she moved to Perth in late 1990.  She obtained part‑time employment with Heathcote Hospital as part of her workers' compensation rehabilitation.  She subsequently obtained part‑time employment with Bicton Hospital.

3. In 1993 she also obtained part‑time employment as a psychiatric nurse with the defendant in what was known at the time as the Central Drug Unit and later called Next Step Drug and Alcohol Services (Next Step).

4. The Central Drug Unit was a detoxification unit in East Perth where a person with an alcohol problem and/or a drug problem could attend for detoxification.

5. The terms and conditions of Ms O'Donovan's employment were covered by the Nurses' (ANF-WA Public Sector) Consolidated Award 1990 (and later the Nurses' (ANF-WA Public Sector) Award 2002) (ANF Award).  The defendant was party to and bound by the terms of the various ANF Awards and also had its own policies and procedures for dealing with complaints or grievances.

6. Ms O'Donovan's initial appointment in 1993 by letter dated 28 April 1993 was as a part-time Registered General Nurse Level 1 (L1).  She worked permanently on night shift; 10 hours each shift over four nights as rostered over a 40 hour fortnight.

7. She described her normal duties as doing anything possible to establish and maintain the good care of clients/patients in their recovery and health while they were 'detoxing' in the Central Drug Unit.  She was also involved with medications, counselling and admissions.

8. Her part-time jobs at Bicton Hospital and the Central Drug Unit resulted in her working 80 to 85 hours per fortnight.  In the meantime her marriage broke down and she divorced in 1994.  She had the care of the children.  Working night shifts enabled her to attend to the children's needs during the day.  She employed a nanny overnight to look after them whilst she was at work.

9. In 1998 she became a full‑time employee at the Central Drug Unit working 80 hours per fortnight.  She worked permanently on night shift; 10 hours each shift for five shifts on Friday, Saturday, Sunday, Monday and Tuesday with days off in between and then three shifts on Sunday, Monday and Tuesday of each fortnight.  She found working five 10 hour shifts in a row difficult.  It was a long time and night shift was stressful both physically and mentally.  However, she enjoyed the work at that time because of her colleagues and the management.

10. Around 2003 the management changed, although its structure remained the same.  The acting chief executive officer was Mr Allsop, beneath him there were two managers one of whom was the manager of finances (Mr Salter) and the other was the manager of the inpatient and the outpatient units (Ms Green), underneath them there was a clinical nurse specialist (Mr Ross), then there was a L2 nurse, a L1 nurse and enrolled nurses.  The human resources (HR) person was Ms Zandvliet who was based at the head office in Mt Lawley.

11. In late 2003 she spoke to Mr Ross about the work roster.  She told him she felt it was affecting her health because of dental problems she was experiencing at the time.  She asked Mr Ross if she could work 'a four and four' night shift.  She had asked (management) to work 'a four and four' night shift as far back as 1999 because of health issues concerning her teeth and neck.  However, she continued working 'a five plus three' night shift because there was a fixed roster system and it was important for her to have off Wednesday nights.  She went along with the operational requirements of the unit and what fitted in with the other employees' roster.  After speaking with Mr Ross she began working 'a four and four' night shift in December 2003 as requested.

Unfair roster changes

1. In May 2004 she again spoke to Mr Ross about the work roster because a nurse was leaving.  She told him she wanted to work four shifts in a row but she did not want to work on Wednesday nights.  Mr Ross responded in an unfriendly way: 'You do your job and I'll do mine'.  She did not explain her reasons for not wishing to work on Wednesday nights.

2. Around that time she also spoke with Mr Allsop about her work situation.

3. She specifically raised her roster arrangements with Mr Allsop because she was extremely upset with the way she believed management had treated one of her colleagues.  She spoke of her concerns about the health of staff and the stress that was being placed on staff by the way management was treating them and conducting investigations into them.  She told him what her colleagues had said about those matters and what she had witnessed herself.  She advised Mr Allsop she could not work on Wednesday nights because she had a commitment to a friend with cancer who she helped on Thursdays.

4. When she had expressed concerns over the telephone about seeing him, Mr Allsop had offered her anonymity.  However, when she told him in person her fear was that she would be targeted next because of the way management had previously targeted staff, he told her that he had great faith in his management team.

5. Following the meetings with Mr Allsop and Mr Ross she found her roster was changed so that she was working on one Wednesday night each fortnight with effect from the roster published on 14 May 2004.  She felt she was being targeted as a result of speaking with Mr Allsop and Mr Ross about her work issues.

6. By letters dated 24 May 2004 she wrote to Mr Allsop and Mr Ross about the Wednesday night roster change.

7. In her letter to Mr Ross she wrote that she 'was concerned that on 9 May 2004, the day after our meeting, I received a phone call from you at approximately 8 o'clock in the morning, stating that I was to work that Wednesday night as Rosalie, a casual staff member worked elsewhere, therefore was unavailable, and she was given my Saturday night.  To my knowledge no other staff member was asked to do the shift.'

8. She understood the roster change was to accommodate a casual staff member rather than herself.  However, Ms Green responded by letter dated 1 June 2004 advising her that 'whilst historically you may have been allocated a certain roster pattern, you are in fact contracted to work as per the published roster'.  Ms Green went on to write, 'We will continue to operate rotating nightshifts amongst all staff to ensure an equitable spread of penalties and responsibilities, whilst meeting as many roster requests as possible and ensuring that the appropriate skill mix is achieved on the unit'.

9. From 29 June 2004 until about 21 August 2004 she was away from work on 'enforced leave'.

10. Around 21 August 2004 when she was due to return to work, she telephoned work and found out she had not been put on the work roster.  However, the roster published on 18 August 2004 for the fortnight commencing on 27 August 2004 had her working on the nights of Sunday, Monday, Tuesday, Wednesday, Saturday, Sunday, Tuesday and Wednesday.  She 'was all over the show'.  There was 'no pattern'.

11. She explained that the lack of a fixed roster made working nightshift very stressful because she was unable to organise her sleep pattern, it affected her commitment to her friend with cancer and her commitments with friends.  It made the situation with the children difficult.

12. She subsequently received an email dated 23 August 2004 from Mr Ross apologising for the oversight for not having her rostered to return to work on 21 August 2004.  He suggested options to rectify the situation and advised he would make the necessary adjustments to the roster.

13. However, she felt she was 'being intimidated through the roster system' and unfairly treated because of her complaints about management in May 2004.

14. She wrote a letter dated 7 September 2004 to Mr Ross along those lines.  She expressed concern over her treatment with enforced leave and the change to her work roster.  She claimed that treatment received by colleagues constituted victimisation, intimidation and bullying in the workplace.  She went on to write:  'It is worth noting that since expressing these concerns to management I have received no reply or feedback on the original concerns.  Next Step managerial response to me has been restricted entirely to imposing leave on me and imposing changes to my roster.'

15. In response, Mr Ross wrote by letter dated 16 September 2004:  'Management can change the pattern of the roster that is worked to ensure that gender balance and skill mix is appropriate.  Your permanent night duty arrangements have not been amended in any way and you still receive your contracted hours so it is my view that we are complying with your employment requirements.  It should also be noted that you yourself changed your roster pattern which affected roster patterns of other staff early this year.'

16. She denied changing the roster pattern herself or that she had been told it had to be changed because of gender mix or skill mix issues.

17. Under cross-examination Ms O'Donovan was asked about Mr Ross' letter dated 2 November 2004 in response to her letter dated 28 October 2004 complaining about roster changes and posing a series of questions for him to answer.  She said she was not satisfied with his responses because she felt they were incorrect.  She felt the roster was changed in response to her complaints to Mr Allsop.  She should have been consulted on roster changes.  There was no gender mix policy or consultation about that with the nurses.  Her roster changed after her leave to accommodate a Mr Fonti.

18. Ms O'Donovan accepted the management team was trying to introduce change with a view to making better clinical standards, reduced clinical risk and provide choice to clients.  She also accepted that would be a very good thing if it could be achieved.

Enforced leave

1. Ms O'Donovan claimed it was incredibly difficult to take leave because management had an unwritten requirement that only one night staff member could go off on leave at a time.

2. In December 2003 she applied for 840 hours of annual leave over a year to take her into January 2005 because Ms Green had told her to do so.  She had applied for two weeks leave in July 2004 because that was when a relative would visit Perth.  However, she was granted only about half the leave she applied for and not the July 2004 leave.

3. She first became aware that she was required to take leave from 29 June 2004 when she received a letter dated 1 June 2004 from Ms Green advising:

   Further to my correspondence dated 4 November 2003 where I advised you of your requirement to clear your leave by March 2004.  I am aware that you have cleared much of your ADO balance, however, you still have 300 hours of public holidays to clear.  As per award clause 25.5 which states:  'The leave of a nurse will not accumulate except with the consent of a nurse and in no case will it accumulate for more than two years.'  I therefore am required to give you four weeks notice of our intention to roster you off from 29 June 2004 until your public holiday balance is cleared.

4. The letter came as a shock because she had no idea that she had 300 hours of public holiday leave to clear when she had applied for 840 hours of leave in December 2003.

5. When she wrote to Ms Green requesting a copy of the letter of 4 November 2003, she also wrote that she was having difficulty working out her leave situation with respect to scheduling life with her family and she would submit a leave plan in the near future.

6. She claimed she first saw the letter of 4 November 2003 (memorandum) when she received Ms Green's letter dated 15 June 2004.  The memorandum required her to apply for and clear as soon as possible outstanding public holidays and accrued days off 'in order to keep within Next Steps budgetary limits'.  It went on to state that failure to do so by March 2004 may result in excess leave being rostered to her.  She said that if she had seen the memorandum at the time she would have cleared her leave by March 2004 as it was her intention to clear her leave.

7. When she wrote to Ms Green requesting an appointment to discuss alternatives because of difficulties rescheduling leave at short notice, Ms Green responded by letter confirming she was rostered off from 29 June 2004 until 21 August 2004 and she could meet to discuss booking further leave.

8. She did not believe Ms Green was prepared to assist her and 'they were hell bent on [her] going off' on leave so she gave written notification of her grievance concerning the enforced allocation of accumulated annual leave and public holidays and her intention to present for work on 29 June 2004.  Her intention in putting in the grievance was to bring her employer into consultation.  When she later spoke with Ms Green about the timing of the meeting concerning the notification of her grievance Ms Green was rude.  She was then contacted by Ms Zandvliet, the HR officer and grievance officer, who arranged a meeting.

Health and stress issues

1. At the meeting with Ms Zandvliet (on 28 June 2004) she discussed her concerns about leave, the way she was being treated by management and her belief that she was being targeted by management.  She told Ms Zandvliet her health was being affected and she felt 'very, very, stressed'.  She was unsure whether she told Ms Zandvliet that she was seeing her family doctor at the time.  The leave issue was not resolved to her satisfaction at the meeting.

2. The next day Ms Zandvliet handed her a letter dated 29 June 2004 that advised the outcome of the grievance investigation and concluded with:  'You are therefore advised not to report for duty on the night shift of 29 June 2004.  Should you attend the site in contradiction of this lawful instruction disciplinary action may be initiated.'

3. She responded by advising she would take the dispute concerning the enforced leave to the Industrial Commission.  She felt gutted by the threat of disciplinary action and she believed that if she returned to work disciplinary action would be taken against her.  She did not attend work for the night shift of 29 June 2004 and she took leave.

4. Under cross-examination Ms O'Donovan agreed that when she met with Ms Green in November 2003 to discuss her outstanding leave, Ms Green went through her leave and gave her a computer printout of the leave balance.  She did not recall being asked to clear her leave by March 2004.  If that occurred she would have needed to go off duty immediately to clear all outstanding leave by March 2004.

5. In re-examination Ms O'Donovan was referred to the dispute settlement procedure in cl 19 of the Nurses' WA Government Health Services Agreement 2001 (Nurses' Agreement):

   The employee concerned shall discuss the matter with immediate supervisor.  If the matter cannot be resolved at this level the supervisor shall, within two working days excluding weekends and public holidays, refer the matter in writing to a more senior officer nominated by the employer, and the employee shall be advised accordingly in writing.

1. Ms O'Donovan said that although she notified management of her dispute about being required to take holiday leave from 29 June 2004 to 21 August 2004, management did not follow the dispute process.  The status quo was not maintained.

2. She explained that she was being directed by management to take more leave than was necessary and with less than four week's notice.  She felt that management was '[T]otally unreasonably unprofessionally heavy‑handed and I found it extremely distressing.  And all they needed to do … is sit with me and have a cup of tea and say "Anne would you like to take your five days off somewhere?'' '  Instead, her employer threatened her with disciplinary action if she sought to apply the status quo and work as usual.

3. By the end of November 2004 she was absolutely devastated by all of the workplace issues and incidents.  She said her mental wellbeing was worse then than what it was now.  'At that particular time, [she] was quite depressed.  [She] was grey, sick, feeling threatened, feeling [her] whole life and that of [her] children and [her] ability to be independent.  It wasn't fair what they were doing to [her] …'

Work environment

1. When asked by her counsel to elaborate on what she told Mr Allsop at their meeting in May 2004 were her particular concerns about workplace issues, Ms O'Donovan said: the management team was putting out policies and procedures without going through the proper process; there was no consultation; there was mismanagement and misconduct by the management team in their treatment of staff and in particular an incident concerning nurses Wild and Lynn; there was unfairness in the management team's investigation of another incident concerning nurses Wild and Scott; there was unfairness in the management team's treatment of nurse Early and another male staff member; the health and stress of staff was being affected by the management team's conduct towards staff.

2. At around that time she also raised with Mr Ross her concerns about access by nurses to the book of policies and procedures when the computers shut down on Thursday nights.

3. Ms O'Donovan described an incident in June 2004 when as a patient advocate she raised in a letter to Mr Ross and Ms Green concerns she had about patient saliva testing following a night staff meeting.  She asked that the issue be discussed and formulated into unit policy.  Ms Green was highly critical of her because she had approached a clerk to do some typing so she could present her submission in a professional manner.

4. Ms O'Donovan explained her involvement in the incident concerning nurse Early which came under investigation by management.  When she wrote a letter supporting Mr Early, she named a patient and another staff member as being involved in the incident.  Management regarded her letter as providing client information to external parties, providing a clinical opinion and identifying a fellow staff member.  She was advised by Ms Green that because she had involved the staff member in the investigation of Mr Early, she was required to write to the staff member advising him she had named him.  She felt disgusted at being required to write the letter and she regarded Ms Green's conduct as offensive.

5. Under cross‑examination Ms O'Donovan agreed the [new] management team tried to provide proper clinical practices that were not then applied.  She also agreed the people that were disciplined were those who had made errors in the performance of their duties.  She also agreed the incident concerning nurse Wild 'really didn't have much to do with [her]' because she was on the night shift and nurse Wild was on the day shift.

Maxolon medication incident

1. On 7 October 2004 Ms O'Donovan underwent dental treatment.  She was prescribed an intra-muscular injection of Maxolon which she was able to self‑administer by injection.

2. On 10 October 2004 whilst at work she became nauseous and needed Maxolon, but had none with her.  She was given the medication room keys by another staff member.  She obtained Maxolon from the medication room and she self administered it by injection.  She also made an entry in the staff communications book addressed to Mr Ross or Ms Laing that she had done so.  Mr Ross was a manager by that time and Ms Laing was the clinical nurse specialist.

3. Subsequently, Mr Ross required her to complete a Drug and Alcohol Office Clinical Incident Report Form concerning her taking the Maxolon from the medication room.

4. She offered to replace the Maxolon from medication at home but that was declined.

5. Mr Ross wrote to her advising the incident was under investigation and he required information from her.  She responded with a detailed 14 pages letter addressed to Mr Ross and copied to Mr Allsop, claiming amongst other things that 'night shift staff use medication from the medication room to treat both clients, and if necessary themselves, as required'.

6. She said it was not her intention to steal the Maxolon but she believed the intention of the investigation was to accuse her of theft.

7. She also had concerns about whether the investigation would be kept confidential and she sent Mr Ross an email dated 22 October 2004 about her concerns.  For some reason she did not receive Mr Ross' email in reply.  She went into work 'extremely distressed, upset and very tearful because [she] was very concerned about confidentiality' to obtain a response from Mr Ross.  She had a meeting with Mr Ross.  Although Mr Ross indicated that only he and Ms Zandvliet were involved it later became apparent to her that others had a role in or were aware of the investigation.

8. By letter dated 1 November 2004 she was advised by Ms Zandvliet:

   We have closed our preliminary assessment of your action in this matter and contrary to our previous advice we will now not be taking this matter to a full investigation.  You will be advised of our decision regarding the outcome of this matter shortly pending our assessment of other issues surrounding this incident.

9. She subsequently received a letter dated 22 November 2004 from Ms Zandvliet with the heading 'First Warning'.  Ms Zandvliet wrote:

   You are now formally advised that your conduct is unacceptable to the Drug and Alcohol Office.  Unless significant improvement is made, and sustained, your contract of employment with the Drug and Alcohol Office will be reviewed.

10. The letter went on to detail her actions concerning the use of Maxolon medication and the corrective action that was required to meet an appropriate level of conduct.  There was also mention of a referral to the Nurses' Board of Western Australia (Nurses' Board).  Although she was devastated to learn that she would be reported to the Nurses' Board over the Maxolon incident, she was never called on by the Nurses' Board.

11. Under cross‑examination Ms O'Donovan agreed that the Maxolon medication was for the patients who were nauseous during withdrawal.  She also agreed she knew, that from time to time, supplies in the medicine room were disappearing and there needed to be an audit.  However, she did not accept that it was unacceptable for a nurse to inject herself whilst on duty because she felt that it was her responsibility to ensure [her] safety and health at work.  She had never injected herself on duty before.  She had never seen other nurses injecting themselves on duty.

12. In re‑examination Ms O'Donovan confirmed she was not disciplined, reprimanded, censured or required to provide any undertaking to the Nurses' Board over the incident.  By letter dated 8 March 2005 she was advised by the Nurses' Board of the outcome of the complaint to the Nurses' Board:

    This March meeting the board resolved that no further action be taken in relation to the complaint made against you.  However, please be aware of your professional responsibilities as a nurse and respect of your patients and colleagues.

13. She also claimed, in re-examination, that she understood she was authorised to access medication if she had a script by the email dated 1 May 2001:

    Just a friendly reminder for the Nurses and Doctors, if you require ANY medications from the pharmacy please request these from the pharmacist and provide a script.  Clinical staff should not be taking medication from the safe, medication boxes that are half empty throw our stock control system into total chaos.

14. She went on to say that any staff that needed Panadol went to the medication room where the Maxolon was kept.  Although keys were needed to access the door to the medication room, keys were not needed to access Panadol or Maxolon medication.  Only the Schedule 8 medications were in a locked cupboard in the medication room.

Valium dosage omission incident

1. On 8 November 2004 Ms O'Donovan administered a dose of Valium to a patient, but she failed to properly record the amount of Valium on the patient's medication chart.  Ms O'Donovan explained that the omission was an oversight as she had recorded that she gave medication to the patient but not how much.  On the following evening shift when she realised her mistake she recorded on the patient's medication chart the correct dose administered.

2. In the meantime, the omission came to the attention of Mr Ross and Ms Laing who required her to complete an incident form.  She completed a Drug and Alcohol Office Clinical Incident Report Form concerning the incident as required by Mr Ross.  Although not required to do so, she also completed and submitted a Drug and Alcohol Office Accident/Incident Report Form detailing the inadequacies of the medication room.

3. At a subsequent meeting with Mr Ross and Ms Laing on 26 November 2004, she queried with them the request to complete an incident form: 'Why are you asking me to fill out an incident form?  There's been six other people [who] have also made medications omissions?'  When they demanded to know the names of the staff members she refused.  She explained it was not her job or responsibility to give the names of the staff members.  She went on to tell them that they were using the incident forms in a detrimental way in order to target staff members.

4. She was in tears.

   I went home after a 10 hour night shift, bawling my eyes out and thinking, 'I am working in a totally unsafe work environment for me and my colleagues'.  I had tried to identify the unsafe working conditions with Mr Allsop.  He guaranteed me that I wouldn't be targeted.  And I understand I was - I was understood that, you know, I was just trying my best for me and my colleagues who were suffering - and cause - it had stress and everything from the work environment.  That it wasn't going to get better under their management and I felt I couldn't work there anymore; I did not feel safe.  I didn't know what they were going to do next.  They'd done one thing after the other and it was absolute continual. 

5. After that meeting on 26 November 2004 she stopped work and she went to see her family doctor for stress.  She was also waiting for an appointment with a psychiatrist.

6. Under cross-examination Ms O'Donovan agreed there was a risk to the patient and quite dangerous for a nurse not to record the dosage of drug administered to the patient.  She also agreed it would be a matter of significant concern to her employer because they had audits.  She accepted that it was fair of management to ask her to complete an incident form.  However, her complaint was that Mr Ross and Ms Laing harassed and bullied her at their meeting.

Sick leave

1. Ms O'Donovan said she had accumulated a lot of sick leave at the time she ceased work in November 2004.  Her employee pay advice of 24 August 2006 indicated she had accumulated 280 hours (about seven weeks) of sick leave over the period of her employment.  She explained that she accumulated the sick leave because she very rarely took her sick leave.  She went to work when she was sick.

Medical treatment in 2003 and 2004

1. Ms O'Donovan said she was very tearful, distressed, having trouble sleeping and extremely anxious when she saw her family doctor, Dr Punyanitya on 16 June 2004 because of workplace stress.  He prescribed Valium and temazepam.  After she returned to work following the enforced leave, she saw him again on 27 August 2004 because of workplace stress.

2. Ms O'Donovan was cross-examined about her health issues in 2003 and 2004.  She took some sick days in 2003 when she was having serious teeth and temporomandibular joint problems.  She informed management that she was having these difficulties and that was one of the reasons she wanted the roster sorted in 2003.  She agreed she had been prescribed the antidepressant Cipramil in 2003 but claimed it was for sleep not depression.  She was prescribed Panadeine Forte for her sore jaw.

3. She agreed the first time she had gone to see Dr Punyanitya complaining about stress at work was 16 June 2004.  The next time she went to see him complaining about stress at work was on 27 August 2004.

Medical treatment in 2005

1. Ms O'Donovan said she was seen by her treating psychiatrist Dr Kay as a patient for the first time on 28 February 2005.  She had been his patient since that time.

2. She described Christmas 2004 as the worst Christmas of her life:

   Man that was the worst Christmas ever of my whole life.  I had this barrage of documents from the management.  I had to hunt for them.  I had my dog who had died.  And I felt terrible, because I was so sick and so stressed, I couldn't even look after my dog.  My children had to do it.  And it was terrible.  It was terrible.  Just before Christmas, there was just like a barrage.  And it never ended …

3. The antidepressants Dr Kay prescribed had side effects that affected her health.  The antidepressant Lexapro made her feel sick and she felt extremely depressed.  The antidepressant Avanza also produced side effects.  Dr Kay also prescribed Valium or temazepam, Tramadol, Panadeine Forte and more recently Targin.  She had given consideration to electroconvulsive therapy because the antidepressants had not been successful.

4. Under cross-examination Ms O'Donovan agreed she had been unable to tolerate antidepressants and she had stopped taking them.  Her depression had prevented her from looking for part-time work.

Lifestyle, social life, domestic life since 2004

1. Ms O'Donovan said her weight fluctuated because she did not want to eat when she was depressed.  Sometimes she ate only one meal a day.  When she felt really depressed she did not want to shower or bathe.  She could not be bothered about her appearance:  Her daughter or friends would say, 'You can't go out looking like a bag lady and dishevelled.'  'I mean, I could get away with it with Dr Kay.  I could just go in my Uggies and stuff like that.  But when it was to Garden City - heaven help me if my daughter was around and I went to Garden City like that.  So she'd dress me and make sure I looked presentable.'  She tended to lie on the couch and watch TV to avoid negative thoughts.  She lost interest in dancing, cooking and dinner parties.  She lacked concentration.  She found it difficult to make decisions.  Her preference was to eat takeaway food or to go out and eat.

2. She led an active social life prior to leaving work and she had lots of hobbies and interests.  Her main hobby was salsa dancing which she did two or three times per week.  In the last eight years she had been salsa dancing about six times.  She still had a lot of friends.  Friends and family kept her going.

3. Her main problems were anxiety, depression and agoraphobia.  She tended to stay at home by herself.  She was reluctant to drive except in the local area.  She tried to avoid doing anything by herself.  She made excuses not to go out by herself.  Without someone such as her daughter to accompany her, she was unable to walk to and attend the local gym which was about a block from her home.  She was happy when with someone to motivate her.  She accepted there were times of enjoyment.

4. When she ceased work her children lived with her in the family home in Tain Street, Applecross.  It was a five-bedroom house with a swimming pool and gardens.  In 2008 she moved to a smaller house in Boyd Street, Palmyra.  Her son Ryan moved out of her home in early 2011.  Her daughter Jade left home in mid‑2011 but returned recently to help her with the court case.

Domestic chores

1. Prior to their departure from the family home the children did the domestic chores and she helped when she was not feeling depressed.  Ryan would bring home the groceries.  He did the cooking.  The children and friends drove her to medical appointments.  When she was feeling alright she would drive herself to Dr Kay's practice in Applecross and Dr Punyanitya's practice in South Perth.

2. She had a number of supportive female friends - Ms Yates, Ms Teo, Ms Parker, Ms Nesbitt and Ms Stevens – who had visited her and taken her on outings or stayed with her.

A typical day

1. She described a typical day as not getting out of bed until 10.00 am or 11.00 am, watching TV to stop negative thoughts, eating around 12.00 pm, depending upon her level of depression friends dropping in or attending appointments in the afternoon, again depending upon her level of depression having an evening meal, 'watch TV again'.

2. Under cross‑examination Ms O'Donovan agreed she had been off work for eight years as she had been diagnosed as suffering from depression.  Her depression was worse now compared with 2004.  The year 2012 was the worst because of the impact of the case and she did not have her daughter with her.

3. She explained the things she could not do on a daily basis:

   … I find it difficult making decisions.  I find it difficult concentrating.  I find difficulty in remembering things.  Sometimes when the depression's bad, I find difficulty in interacting with people and friends, because I just want to shut myself off.  And that varies.  And at other times, Mr Clyne, when I'm on antidepressants, I'm suffering severe side-effects.  Like this year was particularly bad, because for nine weeks my immune system broke down and I came out in boils and had - just - I was really a mess.  So for a whole nine weeks I was a mess this year.

Relationships and holidays

1. She had several intimate relationships – Mr Windsor, Mr Roche and Mr Speedy.  She remained good friends with the men when the relationships were no longer intimate.  She enjoyed going on holidays with her different partners and they holidayed overseas on occasions.  However, she was always dependant on her partners.  She no longer had the independence she previously enjoyed.  She went to Bali three or four times with Mr Roche between 2009 and 2011.  (The dates recorded in her New Zealand passport indicated she was in Indonesia in November 2009 and January/February 2011.)  She also went to the Philippines with Mr Roche.

2. She described a holiday to Europe in 2008 when she accompanied Mr Roche who was on a business trip.  (The dates recorded in her passport indicated she was away from 28 July 2008 until 20 August 2008.)  When he was attending to business she stayed around the hotel.  She could not start the morning until 10.00 am or 11.00 am because she suffered from insomnia at night and depression.  She did not want to go out because of agoraphobia.  However, on that trip on a few occasions in Marseilles she was able to go a few blocks by herself.  On another occasion she took a boat trip by herself.  She considered it an achievement.

3. Under cross‑examination Ms O'Donovan agreed that after she ceased work in November 2004 she went to see her family in New Zealand.  Her sister and her sister's family came to Perth for Christmas.  She was not well and they took her to Sydney for a week and New Zealand for five or six weeks.  (The dates recorded in her passport indicated she was away from around 3 January 2005 until 24 January 2005; and from around 12 January 2006 until 24 February 2006.)  Her children remained in Perth.  She did not have a problem with coping with crowds in Sydney and she agreed she used the wrong word agoraphobia to describe her situation:

   I probably used the wrong word.  I should have really said stress and anxiety rather than agoraphobia.  By that I meant it's - it's difficult for me by myself to go - leave home.  But I'm - I'm okay if I'm feeling well, or even if I'm not feeling well to go with somebody who I feel confident that I wouldn't get lost or I could find my way back.  But I would never leave the hotel without my sister and her husband.

1. She agreed she was not troubled by crowds in Marseilles during the 2008 trip to Europe but she would not go out without Mr Roche except on two occasions.  She described an incident in Paris at the airport on that trip when she was very stressed and anxious.  She was unable to deal with the tickets whilst he was returning the car and they missed their flight.

2. She was cross‑examined extensively about a one month holiday in Vietnam with Jade for Jade's 21^st birthday (2010) during which they shopped in Kuala Lumpur for two or three or four days; trekked in Vietnam and travelled around by bus, train, boat and as pillion passengers on motor bikes.  They also travelled around Cambodia on that trip.  (The dates recorded in her passport indicated she was away from 4 May 2010 until some time after 7 June 2010.)  The motorbike tour was for nine days.  She also undertook a three-day refreshment course for scuba diving and she rode on an elephant.  She was also cross-examined extensively about a holiday in Vietnam with Mr Roche in 2011 during which they holidayed in the Philippines, Cambodia and Laos.  (The dates recorded in her passport indicated she was away from 13 June 2011 until 21 July 2011.)  The motorbike tour on that trip was for four or five days.  On one occasion she dived off a two‑plus metre rock into a river.

3. She was shown photographs of the holidays which she had posted on Facebook.  It was apparent from the way she gave her evidence that she enjoyed explaining what was depicted in the photographs and the story behind each photograph.  She did not agree that the photographs were representative of the holiday(s) in Vietnam because they did not show her 'crying or them trying to massage me when I've got a headache or me not being organised in the morning or Michael - you know, the bad times.  This only represents when we posed for a photo and - at times were enjoyable.'

4. She was also cross‑examined by reference to an NAB Visa credit card account in her name for the period 8 December 2006 to 7 May 2010 about the daily payments to various outlets in the Perth metropolitan area and overseas.  She explained that she or Ryan made most of the payments.  On the occasions that she made payments to stores or restaurants in the Perth metropolitan area she was in the company of another.

Financial affairs

1. Since 2007 she had not earned any income from working or received any Centre Link benefits.  Since her workers' compensation payments ceased she had earned rental income from some townhouses in Hope Road, Palmyra in which she, Mr Windsor and her brother Paul have an interest.  She had not filed any tax returns for 2008/2009, 2010/2011 and 2011/2012.  She had not put in any tax returns since 2007 because she had not felt well enough to face doing anything and she was not very organised.

2. Ms O'Donovan was cross‑examined about her financial situation since 2007 when her pay stopped.  She was also cross-examined by reference to an NAB savings account in her name for the period 20 December 2006 to 28 September 2012 about various transactions.  She called the account 'for the good of all pot' because a number of people had access to the account or their financial affairs were entangled in it.  She accepted her financial affairs were 'a nightmare' and for that reason she had not filed tax returns since 2007.

Family and friends

Jade O'Donovan

1. Ms Jade O'Donovan was a 22 years of age qualified personal instructor.

2. She confirmed her mother's evidence concerning their family life and her mother's interests and activities prior to 2004.

3. Although her mother tried to hide things from her in 2004, she was aware of the complications her mother was having with work.  She noticed changes in her mother.  Her mother was not as active; she thought she would lose her job; she was emotional and concerned as to how she would support the children if she lost her job; she stopped windsurfing, going out with friends, dancing and swimming; she did not want to leave the house; she lacked energy.  When her mother took the enforced leave in 2004, which was partly during school holidays, they did not go on a holiday as usual.

4. In late 2004 going into 2005, she observed that her mother found it hard to get out of bed and out of the house to be active.  Her mother stopped cooking; she stopped doing everything she used to do; she was emotional, depressed and crying; she was not the same person she used to be; she lost care in her appearance.  She would try to encourage her mother to make an effort and help her to dress up to go out.

5. In 2006 after she left school she worked part-time so that she would be available to assist her mother.  She tried to make her mother attend aqua‑aerobics.  Occasionally her mother would go to the gym.  Her mother gave excuses for not wanting to go.  Her mother would say she would not go unless she was there.  She noticed that her mother had good days and bad days.  Her mother was up and down; she repeated herself; forgot things; mumbled and fumbled.  Her mother was like two different people.  She had to make decisions for her mother, she had to make sure her mother had eaten and taken a shower.

6. In 2010, for her 21^st birthday, she and her mother went for a holiday to Vietnam and Cambodia for about five weeks.  She did not leave her mother on her own during the trip.  She had to organise everything for her mother.  They engaged in activities when her mother was up to it.  If her mother was not feeling well they would have a relaxing day.  She did not like riding on the motorbike for hours and hours.  However, her mother insisted on doing that part of the trip.  In the mornings her mother needed to be organised.  She would count down from 10 to get her mother ready.

7. In 2011 she went overseas for 15 months.  She returned to assist her mother with the court case.

8. Under cross-examination Ms Jade O'Donovan was asked about her mother's health issues in 2003.  Although her mother would hide things from her, she was aware that her mother was having trouble with her teeth and jaw, in pain, not sleeping well and lost weight.  Her mother was teary, not depressed.  She did not recall her mother crying.  She was also aware that her mother had a neck problem.

9. In re‑examination Ms Jade O'Donovan said that prior to 2004 her mother's temporomandibular joint problem did not interfere with their family life and her mother's normal activities.

Ryan O'Donovan

1. Mr O'Donovan was a 27 years of age qualified health and safety adviser.

2. He confirmed his mother's and sister's testimony about their family, school and social life and his mother's activities before 2004; the deterioration in his mother's health and emotional well being during and after 2004; his mother's lack of activities and interest after 2004; and the support and assistance he provided for his mother before and after 2004.

3. In 2004 he was aware his mother had issues at work but 'she kept Jade and I very - very sheltered from what was going on, cos she didn't want that to impact us in …'

4. He explained his observations of his mother's condition:

   the condition that my mum has at the moment makes it very, very difficult on herself and the people around her, the support network of friends and family.  It's very emotionally taxing for everybody; the condition itself, the stress, sleeping disorder, anxiety, the dependence on others to assist her and provide support.  It's very hard for her to - to make decisions for herself …

Veronica Parker

1. Ms Parker was an industrial relations agent and a human resources consultant.  She had known Ms O'Donovan for about 20 years.

2. She confirmed Ms O'Donovan's evidence about how their friendship developed after they both separated and divorced.

3. She described Ms O'Donovan as outgoing, vivacious, great sense of humour and very committed to her job.  Ms O'Donovan seemed to be able to balance her work responsibilities with her family responsibilities and her social and physical activities.

4. She noticed a change in Ms O'Donovan when Ms O'Donovan started to have workplace issues towards the end of 2003.  It was progressive over a period and continued into 2004.  She was aware Ms O'Donovan stopped work towards the end of 2004.

5. Ms O'Donovan spoke about things that were happening in the workplace.  She discussed with Ms O'Donovan the work issues and what Ms O'Donovan wished to formulate by way of response.  Ms O'Donovan was not computer literate.  Ms O'Donovan asked her to assist with typing a response to a letter directing Ms O'Donovan to take public holiday leave.  She assisted her with other letters.

6. She noticed changes in Ms O'Donovan's behaviour when Ms O'Donovan came to see her before going to work and then on some occasions on her way back from work.  Ms O'Donovan was anxious, she was unable to think clearly, she had low energy levels, she was in a position where she needed to respond to a lot of correspondence and she needed to initiate correspondence.  It seemed the balance between Ms O'Donovan's work life and her private life was deteriorating because of the need for her to continuously focus on correspondence.

Domestic chores

1. During 2005 she would see Ms O' Donovan most weekends rather than during the week.  She assisted Ms O'Donovan with house work, gardening household chores, shopping and cooking.  She helped Ms O' Donovan's children with homework.  She would assist with chores on the weekend doing an average of between 4 and 5 hours.

2. In October 2005 she moved into Ms O'Donovan's house when her own children had gone overseas to live with their father for a period of time.  She lived there until February/March 2006.  (Under cross‑examination she did not recall that during that time for at least six weeks Ms O'Donovan had in fact been in New Zealand.)

3. During that period she basically took control of the household; preparing and cooking meals, developing a roster to help the children gain some independence in terms of household chores; cleaning and looking after the swimming pool.  She tried to encourage Ms O'Donovan to get up and do some physical exercise.  Ms O'Donovan lacked energy and motivation.  She assisted with the household chores a couple of hours a day Monday to Friday and then on the weekends for about 4 and 5 hours.

4. When she moved out in February/March 2006 she had ongoing contact with Ms O'Donovan until July 2006 when she moved to Queensland.  During that period she assisted Ms O'Donovan with chores mostly on Saturday afternoons for four or five hours.  She stayed in Queensland until Christmas 2006 although she returned to Perth and lived with Ms O'Donovan on four occasions during that period.

5. She subsequently returned to Perth in April 2007 and she stayed with Ms O'Donovan until July 2007.  She took control of the household as her children had returned from overseas.  She organised a roster for the four children to help with chores.  She was working full-time.

6. She moved into her own home in July 2007 but continued to visit Ms O'Donovan on weekends and potter in the garden.

7. In the years since the work issues arose she observed that Ms O'Donovan suffered from tiredness, she lacked motivation, she did not want to be physically active, she had difficulty focusing on what was being discussed and she was indecisive.  She explained she 'had difficulty trying to convince [Ms O'Donovan] that, you know, there were better ways to do things, that things weren't as convoluted as she was making them out to be, things weren't as dramatic as she was making them out to - to be.'

Darrel Speedy

1. Mr Speedy was in a relationship with Ms O'Donovan from early 2011 until early 2012.

2. During their relationship he saw her once or twice a week and most weekends at her home in Hope Road.  When she moved from Hope Road to Boyd Street he assisted by doing mechanical things she was unable to do, hanging pictures, painting and clearing.  He noticed she was very disorganised.  She would start something and then get sidetracked.  She seemed depressed; she would burst into tears for no apparent reason, she did not sleep a lot, eating was a struggle and she would not go shopping unless he took her.

Gabriell Nesbitt

1. Ms Nesbitt confirmed Ms O'Donovan's testimony about their friendship and the assistance and support she provided to Ms O'Donovan.

Assistance

1. Between July 2010 and June 2012 she took Ms O'Donovan to doctor's appointments, shopping and meditation classes.  The doctor's appointments and shopping varied week to week from three to four hours on each occasion.  She also participated in the meditation classes that were held fortnightly in the evening.  Her involvement by way of assistance to Ms O'Donovan in the meditation classes varied from two to four hours.  She also helped Ms O'Donovan with her move from Hope Road to Boyd Street by packing up the kitchen items, setting up the kitchen and arranging and setting up a garage sale.

2. She observed that Ms O'Donovan was indecisive, worried and anxious when she had to do things so she did them for her.

Work colleagues (the plaintiff's witnesses)

Margaret Neill

1. Ms Neill was employed at Next Step as a registered nurse L2 from August 2004 until March 2005.

2. She made no mention in her evidence of Ms O'Donovan.

3. She described Next Step's clients as a very complex and difficult client group.

Work environment

1. She quickly recognised the work environment was toxic.  She was shocked and surprised at the behaviour of senior staff - Mr Ross, Ms Green and Ms Laing – towards other staff.  She observed that Mr Ross, Ms Green and Ms Laing supported some staff and not others.

2. Initially she worked day shift but then worked night shift at her request.

3. She observed the following day shift management problems: the management interaction with staff was very punitive; management would discuss an issue with a staff member in front of other staff rather than take the staff member aside; management was not supportive; and management made a huge issue if there was a drug error.

4. She described an occasion when she was asked by Mr Ross and Ms Laing to go to their office because of an incident.  When she was spoken to in the office, the tone or tenor was initially quite friendly but then it became slightly confrontational.

5. She described another occasion when she was on night shift and Mr Ross came to collect the nurse she was working with to take her home.  Her preference would have been to send the nurse home by taxi rather than Mr Ross attending personally to do so.  Instead of leaving her on her own, Mr Ross should have stayed to ensure there were two nurses on duty.

Michael Scott

1. Mr Scott was employed as a counsellor at Next Step since 1989 although his employment with the defendant began in 1986.  He was the welfare officer for clients.  He was the union representative, the occupational safety and health representative and support person for staff.

2. He met Ms O'Donovan in 2003/2004.  He regarded her as a good nurse, they worked well together and he observed that she worked well with other staff.

3. He gave no evidence about observing Ms O'Donovan at work being ill, stressed or unable to perform her duties or anything of that nature.

Work environment

1. He observed a workplace change after Mr Ross and Ms Green became management which he described as a negative culture; a confronting atmosphere to work in.

2. He described an occasion when he was a support person for Ms Scott at a meeting with Ms Green and Ms Zandvliet concerning the missing patients outing.  Ms Green was angry and 'tore strips off' Ms Scott.  Ms Green threatened him and Ms Scott with breach of confidentiality if they said anything about the meeting.

3. He described another occasion when he was a support person for Ms Edwards at a meeting with Mr Allsop concerning a work issue.  Mr Allsop was fine.  Mr Allsop backed his managers.

4. Surprisingly, under cross-examination Mr Scott said he was unaware that in early 2000 there had been a review of practices.  He did not know that Mr Allsop and others were trying to improve standards.

Gordon Hudson

1. Mr Hudson was employed at the Central Drug Unit as a L2 clinical nurse from June 1998 until the end of 2004.  Although it was a full time position, he was permitted to work part time.

2. He was aware that Ms O'Donovan ceased working at Next Step in late 2004.  He confirmed her evidence about their acupuncture, massage and Qi Gong activities after November 2004.  He gave no other evidence concerning Ms O'Donovan.

Work environment

1. He related a roster incident in 1999 when he felt that his immediate managers dealt with him really badly and very punitively.  He lodged a formal grievance which he considered was resolved satisfactorily.

2. He related incidents in 2003 when Ms Green pulled him in for meetings for 'a whole host of minor incidents'.  He found her to be hostile and unfriendly.  When he went to see her immediate line manager Mr Salter, it was suggested he had an attitude problem.

3. He related an incident in early 2004 when he wrote to Ms Green about increasing his rostered work hours.  When he told her at a subsequent meeting that others were being offered extra hours and he had not been involved in any discussion, she said she was trying to get mental health nurses onto the ward and accused him of personalising the issue.

4. When he raised his concerns with Mr Allsop about the style of management and the rosters, Mr Allsop backed his management staff.

5. He related another incident in 2004 concerning Ms Scott who was put on performance management for six months because of the missing patients outing.

6. He related another incident in 2004 concerning Mr Early and an allegation by a female client of sexual assault against a male staff member.  He was one of the male staff members on the shift but it subsequently emerged that he was not the person named in the allegation.  He described it as a very messy and difficult situation to manage as the patient remained on the ward after making the allegation.  There was no debriefing or instruction given by Ms Green or Mr Ross.  He felt sidelined.

Lynette Edwards

1. Ms Edwards was employed in the kitchen by the defendant in 1989 but from the early 1990s she was employed as an administrative officer L3.

2. She gave no evidence concerning Ms O'Donovan.

3. Around 2004 she noticed a change for the worse in the work environment.

Work environment

1. She had a workplace issue with her supervisor, a Ms Knight, which she characterised as harassment.  She spoke with her union representatives Mr Scott and Ms Packer.  She then spoke with the director of business services, Mr Salter and raised her concern with him.  She was shocked by his biased response.

2. She subsequently submitted a grievance.  She was interviewed by Ms Zandvliet in the presence of her support person.  She was not satisfied that her grievance was dealt with properly.  The draft of the grievance sent to her by Ms Zandvliet was incorrect and she 'had to redo the whole thing'.  She also sent an email and a letter about her concerns to Mr Allsop.  When Mr Allsop 'came down and saw [her] at [her] workplace' in the presence of her support person, he did not offer any support.  She felt he was biased and she was not being heard.

Julie Wookey (Scott)

1. Ms Scott was employed at Next Step in January 2002 as a registered nurse L1 and promoted to registered nurse L2.  She worked full time on a rotating roster; day shifts and evening shifts, occasionally night shift.

2. She recalled Ms O'Donovan.  They would meet each other in the handover shift period.  She worked some night shifts with Ms O'Donovan before Ms O'Donovan ceased work.

3. She gave no evidence about observing Ms O'Donovan at work being ill, stressed or unable to perform her duties or anything of that nature.

Work environment

1. She related an incident that concerned several patients who were being escorted by Ms Wild on an outing during the morning shift and the patients went missing.  The patients had gone to a tavern and consumed alcohol.  When Ms Scott, who was working the afternoon shift, realised Ms Wild had made no report of the incident, she called Ms Wild back to work to do so.  She described the remainder of the shift as awful because of issues with patients about the tavern incident, a disruptive patient on the unit, a patient who threatened suicide was found with a belt around his neck, a patient who went missing from the outing was making inappropriate sexual suggestions to female patients and being aggressive.  Her only support was a junior nurse.  She called Ms Green at home by telephone three times, suggesting she needed a police escort to remove the aggressive patient.  Ms Green did not offer her support.

1. In my view Ms O'Donovan should be awarded $65,000 as general damages.

Exemplary damages

1. Ms O'Donovan claimed exemplary damages.

2. A court may also award exemplary damages where a defendant acts 'in conscious wrongdoing in contumelious disregard of another's rights': Whitfeld v de Lauret & Co Ltd (1920) 29 CLR 71, 77. In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Menzies J at 143 used the terms 'reckless' and 'arrogant'. At 147, Menzies J said that exemplary damages could be awarded where 'the defendant has acted arrogantly, mindful only of its own interests and ... in contumelious disregard of the rights of the plaintiff'.

3. In my view the evidence did not establish that the defendant's conduct was such that I should award exemplary damages.

Summary

1. If Ms O'Donovan had been successful I would have assessed damages as follows:

   General damages  $   65,000

   Loss of earning capacity

   Past economic loss  $  578,985

   Future economic loss  $  512,813

   Leave entitlements   $    29,049

   Loss of superannuation

   Past superannuation   $    56,165

   Future superannuation  $    51,144

   Special damages  $    66,756

   Past gratuitous services   $    25,000

   Future gratuitous services  $    20,000

   Interest

   Interest on past economic loss  $  107,540

   Interest on past superannuation  $    13,480

   Interest on past gratuitous services  $      6,000

   Future needs

   Future medical  $    84,337

   Travelling$      5,000

   Total$1,621,269

Conclusion

1. Ms O'Donovan's claim is dismissed.