Ogu v Western Health
[2022] VCC 2055
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-04712
| Rosemary Ogu | Plaintiff |
| v | |
| Western Health | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2022 – 15 August 2022 | |
DATES OF WRITTEN SUBMISSIONS: | Plaintiff – 30 September 2022 | |
DATE OF JUDGMENT: | 29 November 2022 | |
CASE MAY BE CITED AS: | Ogu v Western Health | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2055 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE
Catchwords: Negligence – stress claim – employer’s duty of care – workplace injury – psychiatric injury – Koehler case – Koehler Principles – self-represented litigant – litigant in person
Cases Cited:Bersee v State of Victoria [2022] VSCA 231; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; Kozarov v State of Victoria (2022) 399 ALR 573
Judgment: Claim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendant | Mr D Masel Ms S Manova | Hall & Wilcox |
HER HONOUR:
INTRODUCTION
1Ms Ogu, the plaintiff, was a Div 1 RN pool nurse on a single night shift on 17-18 July 2015, working in Ward 3F at the Sunshine Hospital (“the shift”). In her Statement of Claim (“SOC”), she alleges that she sustained psychiatric or psychological injury as a result of performing her duties on that shift and that she did not receive adequate support from her employer, Western Health, in the weeks thereafter. In essence, she alleges that: the patient allocation she was given was unfair; she was not given an adequate handover; her workload was excessive; she confronted various stressors during the shift which would not have occurred had the employer taken reasonable care; she was not given adequate support or breaks; and following the shift she was not given an adequate opportunity to debrief nor given support despite showing clear signs of stress. She claims damages for pain and suffering and for economic loss.
2The defendant accepts that it owed a duty of care to Ms Ogu, an experienced nurse, to avoid exposing her unnecessarily to risk of injury, in this case the risk of sustaining a recognisable psychiatric injury. However, as she did not inform the defendant (via the Nurse in Charge on the night) that she felt at risk of mental injury, and gave evidence that she completed her duties and held her head high, the defendant says that it was not reasonably foreseeable that Ms Ogu would sustain a recognisable psychiatric illness as a result of the shift. Even if the defendant was on notice or ought to have been on notice of such a risk, the defendant says there was no beach by it because its policies and procedures in terms of allocation, team nursing, behaviour contract and follow-up support were reasonable, proportionate to the risk and appropriate in all circumstances.
3In the event of a finding that the defendant was negligent, the defendant says that Ms Ogu was contributorily negligent in failing to take breaks, ask for more support, or walk away from the patient on a behaviour contract. Finally, while the defendant accepts that after the shift Ms Ogu suffered psychiatric injury, it says that this was temporary, as she was well enough to return to work in March 2016, and her mental health continued to improve until she suffered a back injury in late May 2016, which put her off work permanently from June 2016. The defendant also says that her current condition and loss of earning capacity are referable to matters other than the matters alleged in her case, including: later life events such as her back injury, issues relating to care of her autistic son, and/or to her psychiatric condition, which is most appropriately diagnosed as Bipolar II Disorder, which can include episodes of hyper manic behaviour, episodes of depression, and periods when a person is essentially asymptomatic.[1]
[1] Transcript of Proceedings, Ogu v Western Health (County Court of Victoria, CI-20-04712, Judge Davis,
25 July – 15 August 2022) (‘T’) 994.19-25.
4Finally, the defendant says that Ms Ogu’s reaction to her back injury remains a cause of her pain and suffering and economic loss and warrants a substantial reduction in damages for this vicissitude. It also says that in assessing general damages, the Court should find that Ms Ogu’s account of her pain and suffering resulting from the shift was distorted, histrionic and exaggerated.
5Ms Ogu had legal representation for the preparation of her Statement of Claim and preparation of medical reports, but her solicitors ceased to act on 27 May 2022. Since that time, and at the hearing, Ms Ogu represented herself.
THE HEARING
6Given the complexity of the issues sought to be raised by Ms Ogu, and without objection from either party, I considered it appropriate to hear the matter as a cause.
7The hearing took place over 14 days. Apart from guidance given orally to her by me throughout the hearing, which was designed to assist her to focus her attention and efforts on the allegations set out in her SOC, with the consent of the defendant I prepared three documents to assist Ms Ogu. The first was a two-page summary of the sequence to be followed in a cause. The second was a one-page document to assist her in preparing her cross-examination of various witnesses. The third was a five-page summary of the law of negligence adapted from the jury charge book. That document also briefly canvassed the onus and standard of proof, the nature of lay and expert evidence, and the process of assessment of the evidence by a trial judge.
8At the hearing, Ms Ogu gave evidence and was cross-examined. She called six witnesses: her friend Nancy Muthamia (who has had limited contact with Ms Ogu, knew little about her personal life or health, and gave no evidence relevant to the shift or its impact on Ms Ogu), registered psychologist Melissa Carnevali, Adjunct Professor (“Adj/Prof”) Kate Gillan, Associate Professor (“A/Prof”) Rosalie Hudson, Dr George Dade, and Dr Albert Kaplan. The defendant called eight witnesses: Adj A/Prof Kelly Rogerson; A/Prof George Mendelson; and staff members: Gina Valencia, Pamela Barac, Jissy Poulose, Joanne Darmanin, Joyce Dalde, and Joanne McIntyre.
9A court book and supplementary court book was compiled by the defendant incorporating the documents each party sought to adduce, with an annotated index identifying the documents said by the defendant to be irrelevant or otherwise objectionable. These court books were in addition to 256 pages of clinical records of the Manor Lakes Medical Centre and of the plaintiff’s psychologist, Melissa Carnevali.
10During the course of the hearing the defendant objected on a number of occasions to the admissibility of some parts of Ms Ogu’s statements; part of her evidence to investigators; and the opinions of the Medical Panel concerning the diagnosis of Ms Ogu’s psychiatric condition. I indicated that I would rule on those matters in my reasons for decision. For present purposes, I indicate that my approach has been to take into account any of the impugned material sought to be relied upon by Ms Ogu that is prima facie relevant, along with the voluminous remaining relevant material relied on by the parties. In the light of my findings below, I decline to formally rule on the objections taken by the defendant.
11At the conclusion of the hearing, Ms Ogu indicated her preference to filing written submissions rather than having to make any further appearance. The parties were invited to exchange and file written submissions.
12The defendant’s written submissions were filed on 29 August 2022, and Ms Ogu’s written submissions were filed on 30 September 2022.
13After the Court of Appeal handed down its decision in Bersee v State of Victoria[2] on 26 October 2022, I invited the parties to file brief written submissions addressing the impact of that decision on this case. The plaintiff confirmed she did not wish to file further submissions, and the defendant filed further submissions on 2 November 2022. I have considered all the relevant evidence and submissions made by the parties.
[2] [2022] VSCA 231.
14Whilst the chronology below is relatively detailed, I have confined my examination of the evidence to the allegations pleaded in Ms Ogu’s SOC.
CHRONOLOGY
15Ms Ogu is 55 years old, the eldest of 9 children. She was born and educated in Nigeria, where she completed a Bachelor of Science degree, performed her national service, and taught. Her fiancé died 11 months after their engagement, in 1990.
16Ms Ogu came to Australia in or about 1998. She worked as a personal care attendant and then undertook nursing studies.
17In 2000, after a relationship break up, she became depressed in the context of work and study pressures and was prescribed Endep by her doctor, but felt that, from her background, this was unacceptable and was a “curse from the gods”.[3] She took an overdose of that medication and was taken to hospital (at Western Health), but was discharged the same day.
[3] T98.28-30.
18From 2003, she worked as a registered Division 1 nurse for agencies in hospital and in aged care. She commenced a postgraduate diploma in 2004 in mental health nursing, but left the course because her cultural background did not recognise mental health problems and stigmatised people with such conditions.
19She stopped work when 26 weeks pregnant with triplets, who were born in 2005. One of the triplets, a boy, suffers from autism and requires 24-hour care.[4] She returned to work three months later, doing one shift per fortnight in a nursing home. In 2006, she worked as a relief nurse unit manager.
[4] Ms Ogu organised a full-time carer for him in about 2020 or 2021.
20Ms Ogu joined Western Health in 2008.
21In early 2009, her then husband, Brett, was six weeks into his graduate nursing placement at Sunshine Hospital when there was an incident resulting in his resignation from Western Health and in his subsequent de-registration by the Nurses Board. One night, when he refused to help Ms Ogu bathe the triplets before she went to work, she called the police. She took the day off work and saw a psychologist once.
22In 2013, she suffered a back injury while assisting a patient in the Emergency Department. She took some personal leave, and then returned to work in Geelong in palliative and geriatric wards.
23In 2013, she was involved in a physical altercation with one of her sisters, who was pregnant, and that sister obtained a 12-month intervention order against her.
24In 2014, Ms Ogu commenced a Master Degree in Nursing Management, but left after one semester. She was interested in aged care and planned to open a nursing home for members of the African community.
25By early 2015, Ms Ogu was working as a nurse for 30 hours per fortnight for Western Health and 30 hours plus per fortnight for Barwon Health,[5] mainly in medical and surgical wards but occasionally in emergency departments and high dependency wards. She had done a few shifts in Ward 3F at Sunshine Hospital for Western Health. It was her choice and agreement to work for Western Health as a pool night shift nurse, being assigned to different medical wards/hospitals as required. She loved her job, was happy to help anyone, was doing well financially, and was slowing down to working 30 hours per fortnight. Three weeks before the shift on 17-18 July 2015, she had taken her children on a holiday to Bright to celebrate their 10th birthdays.
[5] T 41.13-25.
26The evidence concerning the shift itself and its aftermath is set out below, at paragraphs 43-153.
27In terms of treatment, Ms Ogu started seeing her current treating psychologist, Melissa Carnevali, on 29 July 2015. Ms Carnevali prepared reports dated 18 June 2016, 11 September 2018, 30 March 2019 and 17 May 2021.
28From July 2015, the focus of the sessions with Ms Carnevali had turned to return to work readiness,[6] Ms Carnevali considered that by 9 February 2016, Ms Ogu’s mental health was stable.[7] By 5 May 2016, Ms Carnevali reported a “stark improvement”, albeit with “a little bit of instability”, compared to when she first saw her in July 2015.[8] Ms Ogu appeared to be handling challenging situations much easier, was not anxious about her return to work and had belief in her skills and ability.[9] In March 2016, Ms Ogu had suffered a miscarriage. Despite this, she was still motivated and focused on returning to work.[10]
[6] T475.4; T476.21-23.
[7] T475.1-3.
[8] T477.16-17.
[9] T475.17-20.
[10] T476.14-23.
29Ms Carnivale next saw Ms Ogu on 2 June 2016 following an incident at work where she injured her lower back. Ms Ogu presented with increased tearfulness and a decreased mood in response to the pain, but indicated she still wanted to return to work if her back allowed it.[11] A few weeks later, Ms Ogu reported a further decline in mood in response to back pain.
[11] T477.28-478.20.
30As at 18 June 2016 Ms Carnevali considered that Ms Ogu’s psychological condition “resulted from workplace stress, namely high workload coupled with abusive patients and feeling under supported”.[12]
[12] Joint Court Book (“JCB”) 92.
31On 4 August 2015, Ms Ogu submitted a claim for compensation for psychiatric injury which was accepted by the WorkCover insurance agent.
32Ms Ogu’s treating general practitioner between September 2014 and December 2020 was Dr George Dade. Since then, she has been seeing Dr Thomas Cullen.
33In January 2016, Ms Ogu commenced treatment with psychiatrist, Dr Neeraj Aggarwal, which lasted until late 2020.
34In February 2016, she returned to work with the defendant on suitable duties. In March 2016, she suffered a miscarriage. On 27 May 2016, she suffered an aggravation of her lower back injury and ceased work with the defendant on 1 June 2016. She has not worked since that time. On 24 June 2016, she submitted a claim for compensation for her low back injury, which was accepted. She resigned from her employment with the defendant in November 2017.
35In April 2018, she was admitted as a psychiatric inpatient to Essendon Private Hospital for 17 days, where she was diagnosed with severe Major Depressive Disorder with some PTSD symptoms. She was treated with Effexor and Seroquel.
36Barwon Health terminated her employment in July 2018.
37Ms Ogu separated from her husband in around late 2019.
38Against a background of cessation of medication in late 2020, her mood worsened and she was treated by psychiatrist Dr Akinsola Akinbiyi between early November 2021 and March 2022 for Major Depressive Disorder with paranoid symptoms and a Generalized Anxiety Disorder. She was treated with Lexapro, Largactil and Prazosin for her symptoms which included anger, irritability, severe anxiety and panic attacks. When he last spoke to her on 30 March 2022, Ms Ogu told him she was seeing a pain specialist and taking more pain medication.
39At the hearing, Ms Carnevali agreed that since her back injury, Ms Ogu has complained about her physical pain and restrictions and has expressed anxiety in relation to her physical capability to return to work.[13]
[13] T480.20-28.
40Ms Carnevali said that Ms Ogu’s presentation in sessions was often like a roller coaster in that she could “escalate very, very quickly”.[14] In some situations it was difficult to reality test what Ms Ogu told her on account of her distorted thinking.[15] When Ms Carnevali challenged Ms Ogu’s version of events, this would increase her anger.[16] As to the possible source of her traumatisation symptoms, Ms Carnevali agreed that it “was very difficult … to work out what the specific traumatic event was”, as the hospital shift and the subsequent events regarding Allianz and Ms Ogu’s feelings of being followed “seemed to all blend into one”.[17]
[14] 487.25-488.4.
[15] T485.22-486.9.
[16] T486.12-26.
[17] T490.1-13.
41There were medico-legal reports from psychiatrists Dr Albert Kaplan (dated 11 May 2022) and Associate Professor George Mendelson (dated 12 May 2020 and 10 September 2021).[18] Each of them gave evidence at the hearing. Dr Kaplan diagnosed Ms Ogu with Major Depressive Disorder associated with anxiety, panic attacks, traumatisation features, flowing from the shift, although he conceded that her current presentation could be a combination of a constitutional condition and specific symptoms arising after the shift.
[18] JCB 123-131, 168-211, 212-229.
42Against, among other things, a background of a review of the relevant clinical records, Ms Ogu’s symptoms in 2000, her depression in 2009, the reports of Ms Carnevali, as well as the improvement in Ms Ogu’s mental state and the clearance given for a return to work in June 2016 prior to Ms Ogu sustaining a back injury, Dr Mendelson reported a diagnosis of Bipolar II Disorder, which was constitutional and which predated the shift and which resolved, in terms of the depressive symptoms, prior to her return to work in February 2016.
EVIDENCE ABOUT THE SHIFT
43In Ms Ogu’s SOC, the matters pleaded as breaches included: exposing her to a number of stressors throughout the shift (requiring her to care for difficult, aggressive, abusive patients, one of whom was on a behaviour contract but was abusive, denigrating and racist towards her); inadequate handover, support (including a failure to change her patient load after her complaints) or breaks; and an inadequate follow-up or support by the defendant after the shift. I deal with each of these topics below from paragraph 50 onwards.
44Prior to the hearing, Ms Ogu had given multiple accounts of this shift, some more detailed than others. The accounts are contained in her email to Ms McIntyre on 23 July 2015;[19] at paragraphs 13-22 of her statement to investigators dated 26 August 2015;[20] and at paragraphs 17-22 of her affidavit dated 29 January 2020 in support of her Serious Injury Application.[21] Her statement to investigators echoed her first account in relation to the patients in beds 17 and 18. However, this account noted that she complained to Ms Barac in the Communications Room that these patients were giving her “a hard time”,[22] and that Ms Barac “joked and said I was given room 18 just to give the permanent staff a break”.[23] Ms Ogu stated that late in the shift in the drug room she told Ms Barac that “the workload was ridiculous”.[24] In the handover to the day shift, Ms Ogu stated she told the nurse she “had copped a lot of racial remarks”.[25]
[19] JCB 374-375.
[20] JCB 26-28.
[21] Supplementary Court Book (“SCB”) 1-8.
[22] Ibid 3 [20].
[23] Ibid.
[24] Ibid.
[25] Ibid 3 [22].
45In her serious injury affidavit, Ms Ogu stated that a number of patients were “aggressive and abusive” towards her during the shift:[26] including the confused patient who grabbed her around the neck; an elderly patient with dementia wanting to be discharged who yelled at her; another patient who was restless and wanted to go home; and the patient in bed 18, who behaved in terms similar to that described above.
[26] Ibid 26 [18].
46The fourth account is the account given at the hearing, which was largely in similar terms to the previous accounts given by Ms Ogu.
47At the hearing, Ms Ogu agreed that, as at 2015, she had a great deal of experience dealing with sick and elderly people, as well as patients who were confused or drug affected and at times were verbally abusive but that this had not bothered her much in the past. She agreed that night shifts varied; and that Ward 3F, where she had worked before, was a medical ward with an emphasis on respiratory illness, where some patients needed more care than others. She agreed that she had never raised any issues about working on that ward. She agreed that the standard night allocation of patients in a medical ward was 8 patients per nurse; that, while she was allocated 8 patients, other nurses had fewer patients. She denied ever feeling on the 17-18 July shift that she could not keep up, or that she was struggling. Rather, she insisted that, in spite of the “ridiculous” workload that night,[27] she was able to manage all her patients with no problems or mistakes and held her head high until she left the building.[28] However, I note that in her written submissions, Ms Ogu made multiple references to struggling throughout the shift.[29]
[27] T86.4-7.
[28] T76.5-14.
[29] Plaintiff’s Written Submissions received 30 September 2022 (‘Plaintiff Submissions’), 6 [d], 13 [e], [f],
14 (3rd paragraph from bottom), 15 [2].
48Ms Ogu said she never intended to complain about the shift. She had no time to “scratch” herself that night,[30] and never foresaw that she would suffer psychological injury. She said that she did not know why this shift affected her more than others and asked herself that question over the following days.
[30] T149.14-15.
49Later at the hearing, she complained of the unfair workload, the physical attack, verbal abuse and mockery from some of her patients.[31] Later again, and in her written submissions, she emphasised that it was the workload and patient allocation (which she said were unfair) and the entirety of the shift that caused her to break down afterwards, and not the racial abuse on its own,[32] which she said she had experienced before, nor the confused patient who grabbed her; rather it was “everything”:[33] ”everything that happened in the night it’s too much for one person”.[34] She said that she finished her shift 25 minutes late, at 7.55 am.
Allocation process for shifts on Ward 3F - workload
[31] T257.15-25.
[32] SCB 4 [28]; T219.18-220.30.
[33] SCB 3-4, [23], [28].
[34] T64.4-10.
50Ms Ogu was engaged to work on the night shift by Joanne McIntyre (Manager of Nursing and Midwifery Workforce), who stated that Ward 3F is a “heavy ward”,[35] and a nurse can get a heavy shift from time to time, but that this is part of nursing. She had not received previous complaints about unfair patient allocation on that Ward.[36]
[35] JCB 604 [10]-[11].
[36] Ibid.
51The standard practice was that the workload allocation for the night shift was determined by the Nurse in Charge of the afternoon shift because they know the patients and the incoming Nurse in Charge does not.[37] The afternoon shift Nurse in Charge, Sanja Simeunovic, made the allocation of patients for the night shift. Ms Barac, the incoming Nurse in Charge, trusted this allocation.[38]
[37] JCB 611 [6].
[38] T838.9-17 and as stated in her email to Ms Dalde on 21 July 2015 (JCB 370-372).
52On that night shift, patients in beds 6 to 10 had come from Accident & Emergency (“A&E”). They were special respiratory patients who were very acutely unwell, may have required oxygen ventilation through masks, and had to be monitored closely. They were placed in the Intermittent Respiratory Care Unit (“IRCU”) of Ward 3F.[39]
[39] T840.23-31.
53Permanent staff were usually allocated to respiratory patients, who could be more unstable, whereas bank staff were usually given a larger number of more stable patients.[40]
[40] JCB 611 [2]-[4].
54On that night shift, Ms Ogu worked, as Bank Nurse with Pamela Barac (Assistant Nurse Unit Manager), Jissy Poulose (Registered Nurse), Mary Diaz (Bank Nurse),[41] and Gina Valencia (Registered Nurse). The Nurse Unit Manager, Joyce Dalde, was not on Ward 3F during the shift.
[41] Who also was allocated 8 patients.
55According to Ms Barac,[42] the three permanent staff (Ms Barac, Ms Poulose and Ms Valencia) were allocated IRCU patients who were the sickest and most time consuming. Ms Ogu was not trained to take these patients and Ms Barac allocated to her 8 patients in beds 11-18, whose needs fell within Ms Ogu’s scope of practice.[43] They were general medical patients who were acute but stable,[44] and only one or two of Ms Ogu’s patients needed heavy care. The allocations were done so that each nurse’s patients would be grouped in one section of the ward.
[42] See statement of Joyce Dalde at JCB 607-610.
[43] Ibid 608 [11].
[44] Ibid [22].
56In cross-examination, Ms Ogu said that she felt that the workload that night was not fair and insisted that the allocation made was deliberately intended to favour permanent staff.[45] However, later in her evidence she emphasised the problem was with the patients she had been allocated. [46]
[45] T179.22-180.4
[46] T257.15-25.
57Adj/Prof Gillan found that a high acuity workload is not unusual in a large, busy hospital and, in this case, the workload was recognised and additional nursing resources were provided,[47] in the form of two bank nurses.
[47] JCB 288 (4)(ii); T510.22-28.
58According to Adj A/Prof Rogerson, the allocation of five nurses for the 32 patients on the ward was within safe staffing levels. The allocation of patients to the nurses on the shift, including to Ms Ogu, appeared reasonable. The tasks required for the shift relating to each of her eight patients were achievable within the rostered shift time and equated to approximately 6.5 hours.[48] The patients allocated to Ms Ogu would not be considered high acuity on an acute medical ward such as Ward 3F.[49] That three of Ms Ogu’s patients required support during the shift would have made the shift busy but certainly not unmanageable.[50] However, at least five of Ms Ogu’s patients were ambulant and self-caring, and this was to be balanced against the other patients requiring time consuming psychosocial care or bedding changes due to incontinence.[51] In addition, nursing notes were completed by Ms Ogu during the shift, which suggests that there were less busy periods, such that Ms Ogu was able to regroup and review the care she had provided.
[48] JCB 315 [15].
[49] Ibid 316 [17].
[50] Ibid 318 [38].
[51] Ibid 316 [19]-[21].
59Adj/Prof Gillan opined that the nursing resources allocated to the shift, as well as the patients allocated to Ms Ogu, were appropriate. The nursing tasks were achievable during the shift.
60At the hearing, Adj/Prof Gillan agreed that it was a busy shift but that the workload was manageable if team members supported each other.[52] She stated it was her impression that Ms Barac did not have any sense that the team or Ms Ogu were not coping with the busy workload, and agreed that Ms Barac’s observation to that effect may have been correct.[53] She agreed that there may have been a failure by the plaintiff to communicate her stress and need for support to Ms Barac.
Group handover to the night shift
[52] T511.6-15.
[53] T511.16-18.
61The practice in Ward 3F was for there to be a group handover in one room with all night shift staff, followed by each incoming nurse receiving a specific handover, either at the patient’s bedside or elsewhere, from the outgoing nurse for each patient allocated to them.
62On the night of 17 July 2015, the group handover to nursing staff was conducted by Ms Barac. At the hearing, Ms Barac said that each patient was mentioned at the general handover,[54] and that Ms Ogu would have been briefed on patients who were on a behavioural contract.[55]
[54] T843.25-844.2.
[55] T876.22-31.
63Ms Ogu said at the hearing that this handover lasted only 10 minutes and did not mention each patient.[56] She was told that she had been allocated eight patients, but only two of her patients were mentioned: a patient in bed 14, who was to be given a second unit of blood; and a patient in bed 18 who had sepsis, could be verbally abusive, and was on a behaviour contract.[57] In the event that that patient was abusive, Ms Ogu was instructed to walk away from her. Ms Ogu objected to giving the blood transfusion to the patient in bed 14 late at night as being contrary to hospital policy but was instructed to do so by Ms Barac.[58]
[56] T46.9-10, 59.10-13.
[57] According to the Western Health Management of Occupation Violence and Aggression document,
patients ‘found to be exhibiting aggressive, violent or anti-social behaviour which does not have a basis in a physical or psychiatric illness should be placed’ on a behaviour contract. The Patient Contract Form sets out the terms and conditions of the patient’s management during their stay and if anti-social behaviour continues the patient may be discharged and escorted from the premises.
[58] T60.9, 61.3-4.
64Ms Ogu said at the hearing that after the group handover, there was a brief bedside handover for each of her patients from the afternoon shift nurse,[59] but that she did not have time to review each patient’s history.
[59] This handover did not always occur at the bedside, but could occur outside the patient’s room
65In her written submissions, Ms Ogu submitted that both handovers were inadequate in length and depth.
66Ms Poulose stated that Ms Barac mentioned each patient and explained the allocation of patients,[60] which consisted of a mix that took into account the acuity of the patients.[61] Ms Poulose said that Ms Ogu complained at that general handover and during the shift that the allocation to her was unfair.
[60] T1007.9-12.
[61] JCB 614 [4].
67At the hearing, Ms Valencia stated that she could not recall whether each patient was mentioned on the shift in question.[62]
[62] T816.11-29.
68In her report, A/Prof Hudson noted that the general handover appeared to be ad hoc and she was unable to ascertain whether the hospital had a distinct handover procedure.[63] At the hearing, A/Prof Hudson conceded she was not aware that the handover involved a group handover in a staff room followed by bedside handovers for each patient.[64]
Assistance offered to Ms Ogu
[63] JCB 267 [7.42].
[64] T588.8-11.
69In her email to Ms Dalde on 21 July 2015, Ms Barac noted that Ms Ogu required a lot of assistance with her patients, which she was given, and that she complained about her patients and her workload during the shift. Ms Barac stated that after finishing her work on the front desk computer, she went to the back nurses station and sat with Ms Ogu in order to help her. In addition, Ms Barac and Ms Poulose took the patient in bed 12 to the toilet a few times and set up some medication for her. At around 2 am, Ms Barac, Ms Diaz, Ms Valencia and Ms Poulose helped attend Ms Ogu’s patient in bed 14. Ms Barac stated that all the nurses on the shift assisted Ms Ogu. In the light of the assistance being given to Ms Ogu, Ms Barac had to refuse a request from the Medical Registrar to transfer a patient with intensive care needs to the ward from A&E in exchange for a stable patient.
70Ms Barac confirmed this at the hearing,[65] and said that although Ms Ogu struggled to keep up throughout the shift,[66] Ms Ogu still had time to chat with her for about 10-15 minutes while Ms Ogu was looking at her charts.[67] She also stated that she saw Ms Ogu at one point sitting at the nurses’ station doing her notes.[68] Ms Barac did not recall telling Ms Valencia to assist Ms Ogu but agreed that it is something that she would have done.[69]
[65] T879.29-880.9; JCB 371 (bottom of page) - 372 (top of page).
[66] T884.2-11.
[67] T847.24-26, 849.12-13.
[68] T1081.16-20.
[69] T875.5-19.
71At the hearing, Ms Valencia said that it was a very busy night shift. She worked with patients in isolation rooms and did not see much of Ms Ogu. However, she saw Ms Ogu around midnight and that Ms Ogu was stressing and asked for help checking antibiotics. She recalled being told by Ms Barac to assist Ms Ogu if she had time. She said that the three permanent staff took turns in assisting Ms Ogu by attending to her patients’ buzzers and administering antibiotics to her patients.[70] Ms Valencia said that all the permanent nurses were very supportive of Ms Ogu during the shift.[71]
[70] JCB 612 [10].
[71] Ibid 612 [14]-[15]; T803.10-16.
72Ms Poulose said that Ward 3F is an acute ward and so almost every shift is busy, but that the night of 17 July 2015 was not unusually busy, although all the nurses on the shift were very busy.[72] She said that after settling her own patients, she helped Ms Ogu to conduct an intravenous drip check and a drug check, and answered some of Ms Ogu’s patients’ buzzers when Ms Ogu was busy with other tasks.[73] Ms Poulose said that all three permanent staff tried to help Ms Ogu.[74]
[72] JCB 614 [5], [7].
[73] JCB 614 [7]; T1005.26-1006.3.
[74] Ibid 614 [8].
73In her email to Ms McIntyre on 23 July, 2015, Ms Ogu stated that she had received assistance on the shift from the other nurses.[75]
[75] Ibid 375 [10].
74At the hearing, Ms Ogu denied chatting with Ms Barac for any length of time, whether about housing prices or other things. She insisted that she completed all her nursing and paperwork without error and did not struggle during the shift.[76] She acknowledged that she was given assistance during the shift with her patients by other nurses but dismissed this as being part of their ordinary nursing duties and claimed that it “does not constitute help”.[77] She repeated this contention in her written submissions.[78]
Reallocation
[76] T148.30-149.6.
[77] T195.12-13.
[78] Plaintiff Submissions, 13.
75Ms Ogu contended at the hearing that some of her difficult patients ought to have been reallocated to other nurses.
76In her email to Ms Dalde dated 21 July 2015, Ms Barac stated that it would have been harder to reallocate patients and that in any event because Ms Ogu was complaining so much and required so much assistance, Ms Barac refused to transfer one of the ward’s patients to another ward in exchange for a more seriously ill patient from A&E.[79]
[79] JCB 371 (bottom of page) - 371 (top of page); T879.29-880.23, 840.23-27.
77At the hearing, Ms Barac said that it was difficult to reallocate a patient during a shift because a full handover would be needed, and because then a nurse whose patients were all in one section of the ward would have to run to another part of the ward for the patient who was moved. That may create a safety risk. She denied that it would have been feasible or advisable to swap one of Ms Ogu’s patients to another nurse.[80]
[80] T875.20-880.23.
78Adj/Prof Gillan said that reallocation of patients was an unusual event and agreed that if a nurse complains about workload but does her work without clinical error and does not otherwise indicate she is not coping and request reallocation, there would be no need for a Nurse in Charge to consider reallocation.
79She noted that it is unusual to reallocate patients during a shift because it can be disruptive, interfere with communication, and potentially impact adversely on patient care. It is not necessary to reallocate where a nurse is busy but able to work without clinical error.[81] Where a nurse is busy and needs help, other nurses on the shift can provide assistance. Where a nurse is highly stressed and unable to work safely, temporary or permanent reallocation should be considered. Here, assistance was offered to Ms Ogu by Ms Barac and other nurses. With hindsight, given the ultimate impact of the shift on Ms Ogu, it might have been appropriate to consider temporary or permanent reallocation of patients if Ms Ogu was unable to work safely. However, it appeared that Ms Ogu did not communicate to Ms Barac that she was not coping, and that Ms Barac was not aware of this.
Breaks
[81] T507.14-20.
80Ms Dalde’s evidence was that generally on a shift, nurses have a one-hour break which can be taken in one stretch or as two half-hour breaks. It depends on what is happening on the ward, but normally nurses have an allocated break time.[82] Ms Ogu told her that the permanent staff had offered her a break during the shift.[83] Ms Barac told Ms Dalde that she told Ms Ogu she could go for her break several times but that Ms Ogu said she could not do so because she wanted to sit at the desk and eat while she went through her charts.
[82] JCB 607 [2].
[83] Ibid 609 [22].
81At the hearing, Ms Ogu denied that Ms Valencia offered her to go on a break at 12.30 am or that between 4 am and 5 am Ms Valencia offered her a break to write up her patients’ notes. She agreed that Ms Barac asked her once to go for her break, then told her to go for a break. Ms Ogu said that Ms Barac should have taken over and made arrangements for her to take her a break.
82At the hearing Ms Barac said that it was common for breaks to be taken after 1 am so as to be able to fit in five one-hour breaks for the shift. During one nurse’s break, the rest of the team would cover that nurse’s patients. She said that she thought that after 2 am she spoke to Ms Ogu about her taking a break and told her several times during the shift that she could go on break.[84] Each time Ms Ogu declined, saying that she would not have time to go through her charts.[85] Ms Barac said that she could not force anyone to go on their break and could only encourage them to do so.[86] She agreed that some nurses who did not have time to take a break could be paid for that break by claiming overtime.
[84] T850.20-851.10.
[85] JCB 371, 11th line from the bottom.
[86] T1073.23-27.
83Ms Barac said that she recalled seeing Ms Ogu at a time when she was not on a break sitting at a desk for a time doing her notes, and said she understood by this that Ms Ogu was not running around or unable to sit down and take a break.[87]
[87] T1079.25-1080.13.
84Ms Valencia said that she and other nurses offered breaks to Ms Ogu who declined, stating that she would be unable to finish her work.[88] Ms Valencia said that sometime between 4 and 5 am she told Ms Ogu to sit in the nurses’ station and do her reports while Ms Valencia looked after Ms Ogu’s patients’ buzzers. Ms Ogu then sat at the nurses’ station and did her paperwork.[89]
[88] JCB 612 [13].
[89] Ibid; T803.27-29.
85Ms Poulose said she invited Ms Ogu to go on her break but Ms Ogu said she would do so when doing her paperwork. She did so, and other nurses answered Ms Ogu’s buzzers during that break.[90]
[90] JCB 614 [9]; T1005.26-1006.3.
86A/Prof Hudson reported that according to the relevant enterprise agreement, the employer must on each shift allow a meal interval of up to 30 minutes and two breaks of ten minutes each.[91] A/Prof Hudson opined that Ms Barac should have been more assertive in requiring Ms Ogu to take appropriate breaks.[92]
[91] JCB 262 [7.12].
[92] T590.3-6.
87Adj A/Prof Rogerson noted in her report that Ms Ogu was offered breaks, including a meal break, during the shift.[93]
[93] JCB 317 [27]-[28].
88In her report, Adj/Prof Gillan noted that, towards the end of the shift when it was clear that Ms Ogu had not taken a break, if she was stressed, Ms Barac could have insisted on her having a break even if it meant taking over the care of Ms Ogu’s patients for that break.[94]
[94] Ibid 287 [3] (ix).
89At the hearing, Adj/Prof Gillan said that breaks would normally start around 1 am,[95] and if breaks were not pre-allocated at the general handover, the Nurse in Charge could check in with a busy nurse to invite them to take a break; however, usually, the nurse wanting the break would ask to take it and would arrange for another team member to take over her patients during that break. She said that, in her experience, nurses working on busy medical wards do not always get their breaks.[96]
[95] T738.11-19.
[96] T762.19-763.6.
90In her written submissions, Ms Ogu stated that Ms Barac and Ms Valencia “vaguely asking” whether she had taken a break, while being aware of her “struggles and difficulties”, was “just a cover-up”.[97] She stated that Ms Barac’s later request for her to take a break was careless as she was aware and could see how busy Ms Ogu’s section was.[98]
Difficult patients
[97] Plaintiff Submissions, 14.
[98] Ibid.
91In her written submissions, Ms Ogu contended that she had six difficult patients, and that Western Health required her to work with “highly demanding, aggressive, abusive and stressful patients”, which “ended up costing” her mental health, nursing career, pregnancy, and marriage.[99]
[99] Ibid 9.
92In her email to Ms Dalde on 21 July 2015, Ms Barac noted that Ms Ogu told her during the shift that the patient in bed 18 was difficult, and Ms Barac replied that she knew that this patient had been rude to staff. Ms Barac considered that as an experienced nurse, Ms Ogu would be able to manage her. Later in the shift, Ms Ogu reported that the patient in bed 17 had worried about her teenage daughter being at a party in Melton, and that the patient in bed 18 “was talking about how rough Melton was because of the Sudanese (that was probably the racist comment Rosemary is referring to?)”.[100] Ms Barac noted that she and Ms Ogu chatted about property prices in Footscray and Sunshine. Of Ms Ogu’s other patients, Ms Barac noted that the patients in bed 11 and 13 were self-caring; that the patients in beds 15 and 16 were restless but polite men who talked and joked with Ms Ogu and Ms Barac at the nurses’ station; that the patient in bed 12 was unsteady; and the equipment for the patient in bed 14 was buzzing every 10 minutes.
[100] JCB 371.
93In her email to Ms McIntyre dated 23 July 2015, Ms Ogu stated that all but two of her patients were high needs patients. In particular, she alleged that: the patients in beds 17 and 18, who were sharing a room, were demanding, sarcastic in her presence, and made racial remarks in her presence; the patients in bed 15 and 16 followed her around the ward early in the shift (although she managed to settle the patient in bed 15); and the patient in bed 11 was encephalopathic, confused, verbally abusive and grabbed her by the neck when she tried to take her blood pressure causing Ms Ogu to get assistance from Ms Barac.
94Ms McIntyre stated Ms Ogu’s original complaint to her was of unfair workload and rude patients and that these issues with difficult patients would not be considered critical incidents which would trigger the Code Grey response or enliven Western Health’s Critical Incident Stress Management Policy.[101]
[101] T1023.22-28.
95At the hearing, Ms Barac said that she did not recall seeing any of Ms Ogu’s patients following her around the ward.[102]
[102] T867.18-27.
96In relation to the incident with the patient in bed 11, Ms Barac said that once assistance had been provided to the nurse, and there were no injuries to the patient or the nurse, things would get back to normal, and that this would not be regarded as a critical incident.[103] Ms Ogu did not complain formally about the physical aggression from the confused patient. In her written submissions, Ms Ogu submitted that the grabbing incident by the patient in bed 11 ought to have been reported and escalated, although she did not say by whom.[104]
[103] T852.19-29.
[104] Plaintiff Submissions, 11.
97Western Health had a Management of Occupational Violence and Aggression Policy.[105] A/Prof Hudson agreed that in the absence of a complaint from Ms Ogu, there was nothing to escalate to management.[106]
[105] JCB 422.
[106] T593.10-11.
98The patient in bed 18 was on a behaviour contract. A behaviour contract was an agreement between the patient and Western Health concerning acceptable behaviour. The patient in bed 18 was sharing a room with the patient in bed 17.
99According to Adj/Prof Gillan, behaviour contracts include a hierarchy of responses, commencing with the nurse walking away from rudeness or ignoring some behaviour. This is what Ms Ogu was directed to do by Ms Barac at the general handover. If the behaviour required escalation, the behaviour would be reported to the Nurse in Charge of the shift, then to the doctor in charge of the patient, and then to police.[107] At that point, under the behaviour contract, the patient faced discharge from the hospital.[108]
[107] T509.13-21.
[108] JCB 292 [d]; SCB 14.
100The conduct by the patient in bed 18 which was the subject of Ms Ogu’s complaint appears to have occurred at two different points time in the shift. Ms Ogu alleged that Ms Barac was present on the first occasion, but not at the second. However, Ms Ogu stated that she told Ms Barac of what occurred on the second occasion.
101Ms Ogu said that the patient in bed 18 was sarcastic from the time of the bedside handover and shouted at her for taking time to respond. When Ms Ogu and Ms Barac were together to administer her drug to her, Ms Ogu misdescribed the drug as Oxycontin when in fact the drug was Oxycodone. Ms Ogu said that patient then asked: “are we safe tonight?”.[109] Ms Barac did not recall the patient saying this after Ms Ogu misnamed the patient’s medication.[110] Ms Ogu said that the patient laughed at her in front of Ms Barac and that Ms Barac laughed too. Ms Ogu felt humiliated by this. Ms Ogu said that the patient also told Ms Barac that Ms Ogu had called her by the wrong name.
[109] T67.25-27, 68.24-69.12, 181.25-30.
[110] T865.29-866.3
102In her written submissions, Ms Ogu claimed that, since Ms Barac witnessed the sarcastic and belittling remarks of this patient, Ms Barac should have defused the issue, including by requesting a Code Grey response.[111]
[111] Plaintiff Submissions, 12.
103Ms Barac said she first heard of the complaint by Ms Ogu of a racist comment, some days after the shift when learning from Ms Dalde of the complaints made by Ms Ogu. However, she accepted that at some stage she heard “look what you’ve given us” or “what have we been given” from the patient, but said these words were spoken when Ms Ogu was checking a UR number and she understood it as a sarcastic comment about Ms Ogu’s competence, that is, making mistakes or not being too particular with checking things. Ms Barac did not understand the words to be racial abuse and categorically denied laughing at Ms Ogu along with the patients.[112]
[112] T845.26, 947.12.
104Ms Ogu also alleged that at another point in the shift, when Ms Barac was not present, while she was assisting the patient in bed 17, further remarks were made by the patient in bed 18.[113] According to Ms Ogu, the patient in bed 17 expressed concern about her teenage daughter who was attending a party in Melton and needed to be picked up. The patient in bed 18 interjected and commented that “the scary thing is the thought of those stupid Africans, especially Sudanese in Melton, they might crash the party, start a fight, rape girls or even stab kids … I don’t understand why they let them into Australia, nothing good will ever come from them because they are all trouble. We had a beautiful country before all those idiots arrived”.[114] Ms Ogu said that she informed Ms Barac that a patient had commented how “rough it is” in Melton because of the Sudanese and that it was “idiots like me that’s flocked [to] Melton”. [115]
[113] JCB 27 [19].
[114] Ibid.
[115] T204.8-14, 204.25-205.2
105Ms Barac said at the hearing that she was unaware of these further remarks having been made to Ms Ogu.[116] Ms Barac did recall chatting to Ms Ogu at some point in the shift about the cost of housing in Melton as compared with other suburbs.
[116] T878.27-879.4.
106In cross-examination, Ms Ogu denied that she had discussed the cost of housing with Ms Barac, or that Ms Barac had told her that housing was cheaper in Melton than elsewhere, or that she told Ms Barac that it was rough in Melton.[117]
[117] T204.16-205.28.
107A/Prof Hudson agreed at the hearing that she wrote her report on the basis of the facts set out in the letter of instruction.[118] Those facts included that Ms Ogu was subjected to offensive racially motivated behaviour and comments from the patient, and that Ms Ogu reported this behaviour to Ms Barac. However, she was not provided with the statements of the other nurses on the shift, including Ms Barac.[119] A/Prof Hudson agreed that without a formal complaint from Ms Ogu about matters which concerned her, there was nothing to refer to the hospital’s grievance procedure.[120] There was no evidence before me of a formal complaint to Ms Barac or her superiors about these alleged statements.
[118] T585.13-586.28.
[119] T586.20-24.
[120] T593.3-11.
108Ms Poulose said that she was not aware of any racial comments being made to Ms Ogu during the shift.[121]
[121] JCB 614 [6].
109In her report, Adj/Prof Gillan stated that Ms Ogu could have been provided with more information about the patient on the behaviour contract and with more advice as to how to respond to difficult behaviour from that patient.[122] However, Adj/Prof Gillan noted that Western Health had an appropriate policy in place to manage aggressive patients on behaviour contracts and a process for reporting incidents of violence and aggression by such patients. In addition, Ms Ogu had been trained in relation to this policy in June 2015. Ms Ogu did not complete a risk management report concerning any incident of violence or aggression by that patient which affected her. If she had, she would have received immediate support.[123]
[122] JCB 286-294.
[123] Ibid 288 [5] (v).
110Adj/Prof Gillan considered that, in relation to this patient, Western Health balanced their obligations to treat the patient with having the necessary protections in place in the form of a behaviour contract. She considered that the patient’s aggression on the shift was not at a level which required a Code Grey response and therefore the incident did not trigger the debrief process.[124]
[124] JCB 295 [k].
111At the hearing, Adj/Prof Gillan stated that an experienced nurse like Ms Ogu would understand the instruction she had been given to walk away from the patient if they misbehaved, provided it was clinically safe to do so. She noted that there was a process for escalation in place and that Ms Ogu could have escalated the matter by notifying her manager, getting security, or calling police.[125] The patient’s behaviour was not at a level requiring a Code Grey response, and, therefore, there was no requirement for a debriefing process in relation to that patient.
[125] T508.21-509.12.
112Adj A/Prof Rogerson gave evidence in similar terms, noting that it was for the nurse upset by the inappropriate or offensive behaviour from a patient on a behaviour contract to report that to her manager immediately. In particular, the manager of the shift could set boundaries for the patient which, if breached, may trigger an escalation of the response. If a nurse witnessed inappropriate behaviour by a patient to another nurse, the appropriate process would be to document the behaviour and escalate the response as necessary.[126]
Signs of real risk of sustaining a recognised psychiatric disorder
[126] T730.6-731.1, T764.4-14.
113In her evidence in chief, Ms Ogu said:[127]
I managed all my patients. I am so proud and I wrote it in my matter of fact that I am so proud of myself that I was able to manage that shift no problem, no mistake, you know, I held my head high until I got out of the door, Sunshine Hospital, and that was when the tears, the whole emotion hit me.
[127] T76.8-14.
114In cross-examination, Ms Ogu accepted that she did not cry until in the car park, and said:[128]
I held my head high till after the shift. I did not foresee this getting to me.
[128] T213.22.
115She said that it was because she only cried after the shift when in the hospital carpark that she was not critical of any lack of debriefing prior to her leaving the hospital.
116Ms Ogu’s account that she held her head high till the conclusion of the shift accorded with Ms Barac’s observations: that the shift was a typical busy shift;[129] and that it never occurred to her that Ms Ogu was at risk of suffering a recognised psychiatric injury.[130]
[129] T883.18-24.
[130] T883.25-884.31.
117In her written submissions, Ms Ogu stated that she was visibly distressed or teary on two occasions during the shift when she saw Ms Barac: once in the drug room (and told her about her problems with the patients in beds 16, 17 and 18) and once in the front communication room.
118Ms Valencia’s evidence was to the effect that around midnight Ms Ogu asked her to help check her antibiotics and that Ms Ogu was “really stressed and saying she still had so many things to do”.[131] Ms Valencia went on to explain that it was a busy shift, that Ms Ogu worked hard, and that Ms Barac asked Ms Valencia and the other permanent staff to help her, which is what normally happened on a shift, that is, that permanent staff help out non-permanent staff with their workload.[132] Ms Valencia’s evidence was that Ms Ogu settled during the shift and finished on time, and that, on her way out, Ms Ogu thanked her for the help she had given her.[133]
[131] T611 [8]; T802.11-15.
[132] JCB 611 [8], 612 [14].
[133] JCB 612 [16].
119Ms Barac told Ms Dalde on 21 July over the phone when discussing the shift that, overall, the night was busy but she did not see any indication that Ms Ogu was having difficulty coping.[134]
[134] Ibid 608 [13].
120At the hearing, Ms Barac said that the shift was a typical busy shift, that Ms Ogu looked busy, and that on that shift Ms Ogu was looking busy, they were on good terms, speaking to each other, taking care of patients together, “were coping”, the patients were safe, and she felt it was “an okay shift”.[135]
[135] T884.22-31.
121Ms Barac said she recalled sitting at the nurses’ station near the patients in beds 11-14, chatting to Ms Ogu, who was standing at the bench, for 10 to 15 minutes.[136] Ms Barac said Ms Ogu appeared calm and relaxed, and that this could have been around midnight.[137] Ms Barac also said that they chatted quite a bit on that shift because they sat back-to-back using the computers in the back section of the ward.[138] She said that that it was common for nurses on a shift to complain about their work, as Ms Ogu did to her, as a bit of “debriefing”.[139] Ms Barac acknowledged that Ms Ogu hinted to her that her patient allocation should be changed, and that she thought about it but decided that, as she was located next to Ms Ogu and was helping her, she did not think that was necessary.[140] However, as she felt that she and Ms Ogu were working well together, she would not take that hint as a sign that Ms Ogu was not coping unless Ms Ogu said so.[141]
[136] T847.19-26.
[137] T849.8-11.
[138] T849.12.
[139] T884.17-21.
[140] T871.17-872.5.
[141] T884.15-21.
122Ms Barac said that Ms Ogu did not appear upset or emotionally affected during the shift and that she never considered the possibility that the shift posed a real risk of leading Ms Ogu to a recognised psychiatric injury.[142]
[142] T883.18-24.
123Ms Barac did not recall telling Ms Valencia and the other nurses that, if they had time, they should assist Ms Ogu because she seemed to be stressing, but agreed that this was something she would do.[143] Ms Barac agreed with Ms Ogu’s proposition that it was up to a nurse to voice their needs to her.[144]
[143] T875.5-17; PCB 612 [14].
[144] T879.12-17.
124Adj/Prof Gillan said at the hearing that Ms Barac did not appear to have a sense as to how Ms Ogu was coping during the shift and agreed it may have been because Ms Ogu did not communicate any difficulties to her.[145]
Follow-up after the shift
[145] T510.6-20, 511.6-18.
125It appears to be common ground from the medical, medico-legal and psychological evidence, that Ms Ogu decompensated psychologically after the shift.
126The relevant exchanges between Ms Ogu and the defendant which took place after the shift, and which are not in dispute, may be summarised as follows:
127On Sunday, 19 July 2015, Elizabeth Millar, allocation officer, emailed Ms McIntyre stating that Ms Ogu called her in the morning very upset at her treatment on the ward the previous night.[146] She complained that she had been given a very heavy patient load and that people were rude to her. She was quite upset and told Ms Millar she had been crying at times. Ms Millar told Ms Ogu to contact Ms McIntyre on Monday and that Ms Millar would send an email to Ms McIntyre about it.
[146] JCB 369.
128On Monday, 20 July 2015, Ms Millar rang Ms McIntyre and emailed her.[147] Ms Ogu cancelled her evening shift at Barwon Health.[148] Ms Ogu phoned Ms McIntyre in a state of distress,[149] saying that she had been given an unfair workload and had been the subject of racial abuse.[150] Ms McIntyre expressed concern, stated she would contact the ward and speak to Joyce Dalde,[151] and offered Ms Ogu the Employee Assistance Program (“EAP”).[152]
[147] T622.10-14; Ibid 603 [5].
[148] Ibid 28 [24].
[149] Ibid 603 [6].
[150] Ibid 603 [7]-[8].
[151] Ibid 604 [14].
[152] Ibid 605 [28].
129Ms McIntyre phoned Joyce Dalde and told her of Ms Ogu’s complaint. Ms Dalde said she knew nothing of the complaint and would follow up with her staff and the After Hours Administrator.[153]. Ms Dalde did not have an opportunity to call Ms Ogu that day and felt that she needed to investigate first to gain some understanding before calling her.[154]
[153] Ibid 604 [16], [17].
[154] Ibid 607 [7].
130On Tuesday 21 July 2015, Ms Ogu called Ms McIntyre in similar state of distress stating she had not heard from Ms Dalde.[155] Ms McIntyre told her that Ms Dalde was investigating but was having trouble contacting staff. Ms McIntyre invited Ms Ogu to write down her account and offered her the EAP.
[155] Ibid 604 [18]; Ms McIntyre did not recall whether Ms Ogu said she was suicidal (T649.15).
131Ms McIntyre phoned Ms Dalde and asked her to call Ms Ogu, and Ms Dalde agreed to do so.[156]
[156] JCB 604 [20], 607 [6].
132Ms Dalde spoke to Ms Barac in the afternoon to get her account of the shift.[157]
[157] Ibid 608 [8].
133At 6:30pm, Ms Dalde rang Ms Ogu, listened to her side of the story, and apologised to her for her having had a bad night. In her statement, Ms Dalde said that Ms Ogu was bothered by the number of patients she had, rather than focusing on their acuity, and was highlighting the patient with the blood transfusion.[158] Ms Dalde asked Ms Ogu whether it was the workload or the racially discriminatory remarks which had triggered her reaction, to which Ms Ogu replied: “it was everything”.[159]
[158] Ibid 609 [22], [24].
[159] Ibid 609 [21].
134At the end of the call, Ms Dalde heard Ms Ogu cry. Ms Dalde was concerned for Ms Ogu’s mental state and invited her to call back if she wanted to talk further.[160]
[160] Ibid 609 [20].
135Ms Dalde emailed Ms McIntyre to the effect that she had rung Ms Ogu, apologised to her for the unpleasant shift, wished her well and said she hoped Ms Ogu would return to work soon.[161] At the hearing, Ms Dalde said she meant by this apology to express regret for how Ms Ogu was feeling, rather than to acknowledge any fault or mistake that had been made.[162] Ms Dalde had no further contact with Ms Ogu and understood that Ms McIntyre had escalated the matter to Tim Chiu (Operations Manager).
[161] Ibid 609 [26].
[162] T1088.12-16.
136At 6:42pm, Ms Barac emailed Ms Dalde with her account of the shift.[163]
[163] JCB 370.
137Around that date, Ms McIntyre reported the matter to Douglas Mills, the Director of Nursing at Williamstown, who recommended raising it with the Operations Manager and the Director of Nursing at Sunshine Hospital. Ms McIntyre emailed them, with a copy to Joyce Dalde, and included a summary of her discussions with Ms Ogu.[164]
[164] JCB 605 [21].
138On Wednesday, 22 July 2015, Ms McIntyre took sick leave and did not return to work until 31 July 2015.
139On Thursday 23 July 2015, Ms Ogu sent an email to Ms McIntyre setting out her account of the shift.
140On 23 July 2015, Ms Dalde sent an email to Mr Chiu enclosing Ms Barac’s email. Ms Dalde conceded that Ward 3F had very complex and high acuity patients during the relevant shift, and that the patient on a behaviour contract had been abusive to all nurses and doctors and had been escorted out of the hospital on 22 July. However, she felt that the workload allocated to Ms Ogu on the shift was not unfair.
141On Wednesday, 29 July 2015, Ms Ogu’s email account of the shift was forwarded to People Services,[165] and Ms Ogu left a message with Joanne Darmanin of People Services.[166]
[165] JCB 616 [5]; T1041.8-28.
[166] Ibid 616 [3].
142On Friday, 31 July 2015, Ms McIntyre returned to work for a half day, saw Ms Ogu’s email dated 23 July 2015 and tried calling her.[167] Ms Darmanin also tried calling Ms Ogu and left a message she did not answer.[168]
[167] Ibid 605 [23].
[168] Ibid 616 [3].
143On Saturday, 1 August 2015, due to an administrative oversight which meant that Ms Ogu had not been removed from the roster because she had a medical certificate, Ms Millar contacted her to ask Ms Ogu if she wanted a shift.[169] Ms Ogu insisted at the hearing that this was a deliberate trap set by Western Health and that they and Allianz (its insurer) were “out to get her”.[170]
[169] Ibid 605 [25]; T677.19-23.
[170] T240.10-28, 244.24-26.
144On Monday, 3 August 2015, Ms McIntyre phoned Ms Ogu,[171] apologised for not responding earlier and asked how she was. Ms Ogu became distressed and said she had been to the doctor, and that she had spoken to Tina Horsfall.[172]
[171] JCB 377.
[172] JCB 605 [24].
145Ms Ogu phoned Ms Darmanin, sounding distressed, and relayed how she had felt on the shift, stating that she did not feel valued. Ms Darmanin offered Ms Ogu the EAP and emailed other staff members about her conversation with Ms Ogu.[173]
[173] Ibid 616 [8], 378.
146Ms McIntyre then updated relevant staff members about her own email communications since the incident.[174] She also consulted OHS to confirm that Ms Ogu had completed the relevant paperwork for WorkCover.[175]
[174] Ibid 377.
[175] Ibid 605 [24].
147Ms Darmanin emailed Ms McIntyre and other staff notifying them that Ms Ogu had phoned her and acknowledged receiving an apology,[176] but complained of a lack of support from the defendant after the shift. Ms Ogu said that she was on anti-anxiety medication and had resources available to her such as her doctor and psychologist, but indicated that she was not functioning normally. Ms Darmanin suggested that Ms McIntyre contact Ms Ogu again to get further information about the shift and her condition.
[176] Ibid 378.
148On Tuesday, 4 August 2015, Ms McIntyre spoke to Ms Ogu who said her doctor had referred her to a psychologist and that there was no return to work plan as the doctor could not say how long recovery would take.[177]
[177] Ibid 605 [26], Ms McIntyre stated: “[s]he did not use the term depression but I was thinking she may
have anxiety”.
149On Thursday 6 August 2015, Ms McIntyre called Ms Ogu, who said she was feeling a bit better.[178] Ms McIntyre called Ms Ogu again on 14 and 17 August and left messages.[179]
[178] Ibid 605 [27].
[179] Ibid.
150In her written submissions, Ms Ogu submitted that each of the Western Health staff she interacted with in the first days after the shift were aware of her distress, and therefore she should have received continuity of follow up between days three to 13 after the shift, when Ms McIntyre was absent. Ms Ogu considered that this gap was inconsistent with Western Health’s grievance escalation process.
151In relation to follow up after the shift, Adj/Prof Gillan noted that if the formal grievance policy had been followed, then Ms Ogu would have been referred to the EAP and People Services in a timely fashion. However, she considered that the initial response from the Nursing Workforce team was supportive; that although formal debriefing using the EAP was considered and offered to Ms Ogu, it was not required because she had already arranged to see a psychologist. Adj/Prof Gillan noted that Ms Ogu was given a number of opportunities to relay her concerns, both verbally and in writing, which she did; that at least four senior staff members provided her with support and explanation; that she received an apology from the Nurse Unit Manager for her experience during the night shift; that her concerns were investigated and that OH&S were involved to manage a gradual return to work; and that she was offered EAP counselling a number of times.
152The main shortfall in follow-up support about which Ms Ogu complained was a break in continuity of support while the manager was on sick leave which led Ms Ogu to feel that she was not valued.[180] Whilst agreeing that this break in continuity undermined the timely escalation of Ms Ogu’s complaints through the Grievance Policy, Adj/Prof Gillan concluded that “all efforts were made by the defendant to provide timely and proper support following the 18 July 2015 events, however the follow up provided after the shift does not appear to have been effective in alleviating the plaintiff’s distress”.[181] I note that any delay after Ms McIntyre returned to work was because Ms Ogu did not take Ms McIntyre’s call.
[180] JCB 290.
[181] Ibid 290 [7] (vii).
153At the hearing, Adj/Prof Gillan noted that this interruption of one week from the Thursday following the shift due to McIntyre’s illness was unfortunate, but said that any investigation was likely to take some days and would need to be escalated by her to the appropriate level. She rejected the suggestion that someone else should have followed up with Ms Ogu during that week because this might raise issues of confidentiality and because having to repeat the substance of her complaint to another person might worsen Ms Ogu’s sense of trauma.[182] She agreed that any harm caused by the delay was ameliorated by the fact that Ms Ogu had already seen her doctor and been referred to a psychologist by 29 July; and was invited to contact the hospital if she felt she needed to talk to someone there.[183]
[182] T514.3-21.
[183] T512.6-21.
DUTY OF CARE – LEGAL PRINCIPLES
154As an employer, Western Health owed a non-delegable duty of care to Ms Ogu, its employee, to avoid exposing her unnecessarily to risk of injury.[184] Where the work related injury is purely psychiatric and not physical, as is the case here, the question is:[185]
[W]hether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.
[184] Czatyrko v Edith Cowan University (2005) 214 ALR 349, 353 [12].
[185] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 (‘Koehler’), [33].
155Questions of foreseeability, which are relevant to the existence and scope of a duty of care, breach of duty, or remoteness of damage, are fact and context specific,[186] and are not to be determined through the prism of “litigious hindsight”.[187] Factual considerations inform both the question of when an employer’s duty to ensure reasonable steps are taken to prevent or minimise a foreseeable risk of psychiatric injury to a particular employee arises and, where the duty is engaged,[188] what reasonable steps are required. Moreover, the fact that employment may cause stress and some employees may respond to stress by developing a psychiatric injury is not, in the context of employment, a basis to find psychiatric injury is foreseeable. Rather, regard must be had to the nature of the work and what the parties have agreed under the contract of employment.
[186] Bersee v State of Victoria [2022] VSCA 231 (‘Bersee’), [87].
[187] Koehler [28].
[188] Which is more than predictable (Bersee [98]).
156It follows that in some cases, psychiatric injury will be a reasonably foreseeable consequence of the performance of work and in others it will not be.
157I note that on its facts, this case is similar to Koehler’s case, where the plaintiff complained of her workload but allegedly gave no sign of risking psychiatric injury. On the authorities,[189] absent evident signs from Ms Ogu (apart from her complaints as to duties and workload) ‘warning of the possibility of psychiatric injury’,[190] Western Health was entitled to assume that she was capable of performing her job and had to be conscious that inquiry into psychiatric well-being raises important privacy considerations and that it is not for employers to monitor an employee’s mental health.
[189] Ibid; Johnson v Box Hill Institute of TAFE [2014] VSC 626 (‘Johnson’), [406].
[190] Johnson [406].
158Unlike Bersee, in this case the risk of psychiatric injury was not associated with a change in work practices. And unlike in Kozarov v State of Victoria[191], Ms Ogu’s work, the routine work of a ward nurse in a medical ward in a public hospital, did not involve continuous performance of psychologically challenging work such as dealing with child pornography, where the employee’s training and experience could not be relied upon as a protective measure without more, that is, implementation of policies limiting ongoing exposure.
[191] Kozarov v State of Victoria (2022) 399 ALR 573 (‘Kozarov’).
159The Court must make an objective assessment of whether the steps identified by Ms Ogu as appropriate ought in fact to have been taken by Western Health, based on what was known or reasonably available at the time, that is, during the shift.[192]
[192] Bersee [112].
160Having regard to the facts in this case, I consider that on the night of 17 July 2015 Ms Ogu was performing work of a relatively routine nature that she had agreed to perform under her contract of employment - the work of an experienced RN Div 1 bank nurse on a night shift in a busy acute medical ward where she had worked before. The care of the patients allocated to her was a fundamental obligation of her employment contract and the work she performed on the night in question fell within the standard work of such a nurse.
Were there ‘warning signs’ from Ms Ogu of the possibility of sustaining a recognised psychiatric disorder?
161Given Ms Ogu’s qualifications, experience and familiarity with working night shift on Ward 3F; the fact that public hospital medical wards regularly contain a range of patients with various issues who all require nursing care; her evidence that she completed all her work on the shift with her head held high, did not inform Ms Barac that she felt at risk of mental injury, and did not cry till she was in the carpark; I do not consider that appearing stressed at times during one busy night shift is a sufficient sign of psychiatric injury or impending psychiatric injury.
162I am not satisfied that there were evident signs from Ms Ogu during the shift warning that she was at real risk of suffering a recognised psychiatric injury. I do not consider Ms Valencia’s evidence to be tantamount to an observation or recognition by her on the night that Ms Ogu was at real risk of suffering a recognised psychiatric injury.
163I accept that Ms Barac and Western Health had no actual knowledge of such a risk. In the circumstances, I consider that Western Health was entitled to assume that Ms Ogu was capable of performing her job. On Ms Ogu’s own evidence, she did so on the shift in question. For this reason, I do not consider that Ms Ogu’s complaints as to workload, allocation and difficult patients on a single night shift found a basis for finding that a reasonable employer would have recognised a risk of sustaining a recognised psychiatric injury.
164However, in the event that I am wrong in this regard, I proceed to consider the reasonableness of Western Health’s conduct in relation to the matters raised by Ms Ogu in her SOC.
BREACH OF THE DUTY OF CARE
FINDINGS
165I note that objectively speaking, there was not a great deal of difference between the lay witnesses (including Ms Ogu), concerning what occurred on the shift and its aftermath. Much of the difference lies in Ms Ogu’s interpretation of these events in hindsight and through the prism of her psychological state since that time.
The plaintiff as witness
166I make the following observations of Ms Ogu as a witness. She presented as highly intelligent, well-educated and very articulate. She demonstrated a detailed knowledge of all of the documents she insisted were relevant, as well as of those relied upon by the defendant. She acknowledged that she was suffering from a psychiatric illness, but insisted that it was in the nature of depressive disorder with anxiety and not bipolar disorder. Leaving aside the appropriate characterisation of her disorder, Ms Ogu’s emotional presentation at the hearing was consistent with her suffering a psychiatric illness.
167Her presentation was one of extreme volatility, with frequent outbursts (many of which interrupted the evidence) of shouting, crying, making editorial comments and various accusations against the defendant. She said that this matter had lingered for seven years,[193] that she had been waiting four years for the hearing,[194] and that her main goal was to “to be heard”.[195] She insisted on ventilating at the hearing all the matters which concerned her about the conduct of Western Health, most of which predated the night shift or were irrelevant to the allegations set out in her SOC. This attitude permeated her examination of various witnesses as well as her written submissions.
[193] T3.24-28.
[194] T61.28-29.
[195] T1155.12-13.
168I accept that Ms Ogu genuinely attributes her current psychological state to conduct by Western Health over a number of years in relation to a number of matters, many of which are not the subject of her claim. Her emotional volatility was consistent with the viva voce evidence of her treating psychologist (since 2015), Melissa Carnevali,[196] to the effect that Ms Ogu’s mood and presentation at sessions was like a roller coaster, with dramatic fluctuations and periods of voluminous and rapid speech, agitation, anger, and irritability, rapidly followed by joking and a focus on treatment goals. Ms Carnevali indicated that Ms Ogu demonstrated distorted thinking in relation to events, a tendency to personalise, catastrophise and misinterpret them, and this made it difficult for Ms Carnevali to reality test them.[197] In particular, Ms Carnevali reported that Ms Ogu was “very prone to misinterpret situations and experiences distorted thinking, rapidly feeling others are judging her negatively and acting racially”.[198] Ms Carnevali also noted that Ms Ogu had a very hostile attitude to the defendant’s insurer.[199]
[196] T486.27-487.14.
[197] T483.10-484.16, 494.25-495.3.
[198] JCB 100 [2]; T483.14-17.
[199] At the hearing, Ms Ogu blamed the insurer for her miscarriage in March 2016.
169I have put Ms Ogu’s presentation to one side and limited my findings to the matters pleaded in her SOC.
Allocation, workload, assistance and reallocation
170The weight of the expert nursing evidence was to the effect that the shift was adequately resourced, and that the allocation of patients to Ms Ogu was reasonable and fair.[200] I accept this evidence and find that the patient allocation made to her and the workload involved assigned to her on the shift was not excessive or unreasonable or unfair.
[200] Ms Rogerson (JCB 317 [25]–[28]), Adj/Prof Gillan (JCB 285 [2] (i), JCB 287 [4]); T510.22-511.18)
171In particular, I accept that the more medically complex patients were assigned to permanent staff because of their expertise and the advantages of geographical co-location;[201] and that the work assigned to Ms Ogu was within the scope of her ordinary duties as a Div 1 pool nurse of 12 years’ experience.[202] On the evidence, I find there is no substance to Ms Ogu’s complaint about the administration of a blood transfusion during a night shift. I accept Ms Barac’s evidence that such procedures occurs on night shift when ordered by a doctor.[203]
[201] T842.14-16, 1095.27-31, 1096.4-11, 1097.4-10.
[202] JCB 240.
[203] T845.4-12.
172The system of work was that nurses worked as a team on the shift, with a nurse requesting further help from another as required and, on occasions, by a nurse attending to the buzzer of a patient of another nurse.[204]
[204] T803.1-5, 803.10-16, 875.14-17, 1005.29-31, 1077.2-7; JCB 371.
173The weight of the evidence was to the effect that if she had done so, the other permanent Ward 3F nurses would have assisted her.[205]
[205] Ms Barac (T875.15-17), Ms Valencia (T805.21-29; JCB 612 [10]), Ms Poulose (JCB 614 [7]-[8];
T1006.2-3).
174On the evidence, I am satisfied that it was a busy shift but within the range of shifts experienced as part of the job. Assistance was available to Ms Ogu and considerable assistance was given to her. More assistance would have been given had Ms Ogu asked and she was invited to take a break. On her own evidence, Ms Ogu competed all of her duties. I accept Ms Barac’s evidence that she chatted at times with Ms Ogu during the shift.[206]
[206] T149.1-6, 847.8-849.3.
175I accept the expert evidence concerning the difficulties associated with reallocating patients during a shift and the fact that such reallocation would not ordinarily occur and would not occur at all without a clear complaint from a nurse about their inability to manage their workload, or specific patients.
176This allegation of negligence is not made out.
Group Handover
177I consider that nothing turns on the differences between Ms Ogu and other nurses as to the length and depth of the group handover, for the following reasons. Firstly, Ms Ogu agreed that she was given important information at the handover about the patient on the behaviour contract who could be verbal, as well as the instruction to “walk away” if that occurred.[207] Secondly, although Ms Ogu denied being told anything about the encephalopathic patient, she agreed that she recognised that the patient was confused.[208] Thirdly, she agreed that further information regarding each patient was available to her from the patient’s nursing care plan,[209] which she had to consult each time she performed observations or administered medication. Finally, I note that Ms Ogu did not identify any matter that she contended ought to have been mentioned at a handover (group or individual) and was not mentioned, and then caused her injury.
[207] T185.22-27, 186.21-22.
[208] T187.26-27.
[209] T192.26-27.
178For the above reasons, this allegation of negligence is not made out.
Breaks
179Ms Ogu at first denied that she was ever offered a break, then agreed that Ms Barac asked if she had been on a break, told her to go for a break, to which Ms Ogu replied: “I’ve got heaps to do”.[210] She also denied that Ms Valencia had offered her a break.[211]
[210] T208.12-23.
[211] T209.25.
180The weight of the evidence, from Ms Barac,[212] Ms Valencia,[213] and Ms Poulose was to the effect that Ms Ogu was offered breaks by Ms Barac and her co-workers but she declined.[214] I prefer their evidence to that of Ms Ogu on this point.
[212] JCB 371.
[213] Ibid 612 [13].
[214] Ibid 614 [9]; T1005.31-1006.1, 1018.19-20, 1020.23-26.
181Ms Ogu agreed that Ms Barac saw her eat and drink,[215] and Ms Barac’s evidence, which I accept, is that Ms Ogu spent some minutes chatting with her during the shift and did not work flat out without interruption.[216]
[215] JCB 380.
[216] T847.8-849.3.
182I note that Adj A/Prof Rogerson found that breaks were offered to Ms Ogu, including a meal break, and that interviews with other staff revealed that it was a busy shift but that Ms Ogu was provided with support and appropriate teamwork. A/Prof Hudson,[217] and Adj/Prof Gillan,[218] indicated that Ms Barac could or should have been more assertive in requiring Ms Ogu to take a break. However, the standard by which the defendant’s conduct is to be measured is not the standard of perfection, viewed retrospectively, but rather what was reasonable at the time, and in the circumstances. Adj A/Prof Rogerson found that there was no evidence that Ms Ogu raised any concerns during the shift about taking a break. At the hearing, A/Prof Hudson said she was unaware when writing her report that offers of a break had been made to Ms Ogu and agreed that there is a discretion as to whether breaks should be insisted upon.[219]
[217] T590.3-6.
[218] Ibid 287 [3] (ix).
[219] T591.15-26.
183Given the absence of evidence that Ms Ogu displayed signs of impending psychological injury, I am not satisfied that Ms Barac was in a position to force Ms Ogu to take a break or that her failure to do so bespeaks negligence on the part of the defendant.
184This allegation of negligence is not made out.
Difficult and abusive patients
185Ms Ogu stated that she passed on to Ms Barac what the patient in bed 18 had said but did not take further action. As the patient was on a behaviour contract, Ms Ogu at first followed instructions to ignore any verbal abuse and walk away. Thereafter, if there was further behaviour which she found offensive, there was an escalation process available to her which she did not invoke. There was also a grievance policy in place which would have been activated by a formal complaint. Ms Barac’s evidence was that the comments she heard were not racist, and that Ms Ogu did not complain to her about those comments or any other comments made later by that patient.
186In the circumstances, I consider that there was no breach by Western Health of its duty of care to Ms Ogu.
Follow-up
187As Ms Ogu did not realise she was not coping or show any signs of injury until after she left the ward, there can be no criticism of the lack of opportunity to debrief or to offer other aftercare on the night of the shift.
188Moreover, the evidence is to the effect that after the shift Ms Ogu received the offer of similar resources which would have flowed if she had been exposed to a critical incident on the shift.
189There was sympathetic listening (a form of de-briefing) by Elizabeth Millar on Sunday 19 July 2015,[220] and by Ms McIntyre on the Monday 20 July 2015.[221] The matters raised were appropriate for investigation. Appropriately, Ms McIntyre asked Ms Ogu to set out her complaints which she did by email sent to Ms McIntyre at 6.19 pm on Thursday, 23 July 2015.[222] The complaints had grown. In the meantime, Ms Ogu was offered assistance under the EAP, which she declined.[223] She was by then under the care of her GP and was arranging to see a psychologist. Appropriately, Ms McIntyre had also asked Ms Barac and Ms Dalde to address the issues initially raised by Ms Ogu.[224]
[220] T214.16-20.
[221] T215.25, 216.6.
[222] JCB 374-375.
[223] Ibid 388-390.
[224] Her response is at JCB 370-372.
190I accept the expert evidence of A/Prof Gillan that all reasonable efforts were made by the defendant to deal with Ms Ogu’s complaints in a timely manner.
191On the totality of the evidence, I am satisfied that Ms Ogu’s condition was well entrenched by the Thursday when she responded to Ms McIntyre, who was then off work sick. Ms McIntyre’s temporary absence was not negligent, and in any event, on the medical evidence, was not a cause of Ms Ogu’s illness or a worsening of it. Nor do I consider it likely that her illness would have been alleviated by Ms McIntyre contacting her during that period.
192This allegation of negligence is not made out.
Conclusion
193An analysis of the evidence does not demonstrate that there was any breach of the relevant duty by Western Health. I consider that a reasonable employer in the position of Western Health would not have foreseen a risk (that was not farfetched or fanciful) of psychiatric injury to an experienced Ward 3F nurse, nor offered follow up care apart from what was provided and offered to Ms Ogu because the events occurred on a single shift, after which injury was already established; and because she did not communicate or exhibit signs of a risk of sustaining a recognised psychiatric illness. In particular, her complaints as to duties and workload on a single shift were insufficient signs of a risk of suffering a recognised psychiatric injury to establish a claim for workplace psychiatric injury.
194Even if such a risk ought to have been identified or inferred, the risk was low, and I consider it was adequately addressed by the measures adopted in terms of staffing (with two bank nurses: Ms Ogu and Mary Diaz) being added to the shift by the afternoon nurse in charge to accommodate the heavier than average acuity of the ward’s patients;[225] allocation of patients; an adequate two-part handover; standard team nursing procedures; the patient in bed 18 being put on a behaviour contract and Ms Ogu being advised to walk away if the patient acted up; the availability and offers of a break to Ms Ogu, which she declined; the refusal by Ms Barac during the shift to swap a patient out in exchange for a sicker patient from A&E; the existence of a critical incident policy (although there was no critical incident); and the follow up after the shift including offers of employee assistance.
[225] T830.3-9, T813.2-10; JCB 368.
195I do not consider that the duty to Ms Ogu extended to steps such as relieving her of the care of patients assigned to her, as this would be inconsistent with Ms Ogu’s employment as a RN Div 1 pool nurse. Nor do I consider that it was necessary for Western Health to provide follow up care in addition to what was provided and offered. There was no breach by Western Health of its duty of care.
196There being no breach by Western Health of its duty of care to Ms Ogu in the present case, it is unnecessary for me to consider the issues of causation and damages.
197Ms Ogu’s claim is dismissed. I reserve the question of costs.
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