Polau v Wintringham Specialist Aged Care
[2020] VCC 1562
•5 October 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-00075
| SOSO POLAU | Plaintiff |
| v | |
| WINTRINGHAM SPECIALIST AGED CARE | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 4, 5, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23 and 25 June 2020 | |
DATE OF JUDGMENT: | 5 October 2020 | |
CASE MAY BE CITED AS: | Polau v Wintringham Specialist Aged Care | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1562 | |
REASONS FOR JUDGMENT
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Subject:TORT – Negligence – Duty of Care
CatchwordsPsychiatric illness suffered in the course of employment – scope of duty of care – reasonable foreseeability – damages – pain and suffering – loss of earning capacity
Legislation Cited: Occupational Health and Safety Act 2007 (Vic); Aged Care Act 1997; Evidence Act 2008
Cases Cited: Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Czatyrko v Edith Cowan University (2005) 214 ALR 349; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; The Age Company Limited v YZ [2019] VSCA 313; Ogden v Bells Hotel [2009] VSC 219; Rosstown Holding Pty Ltd v Mallinson [2000] 2 VR 299; Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275; Swan v Monash Law Book Cooperative [2013] VSC 326; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Wyong Shire Council v Shirt (1980) 146 CLR 40; Rosenberg v Percival (2001) 205 CLR 434; Vairy v Wyong Shire Council [2005] HCA 62; McLean v Tedman (1984) 155 CLR 306; Hatton v Sutherland [2002] 2 All ER 1; Wearne v State of Victoria [2017] VSC 25; Acir v Frosster Pty Ltd [2009] VSC 454; Smith v Gellibrand Support Services Inc (2013) 42 VR 197; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Jobling v Associated Dairies Ltd [1982] AC 794; DNM Mining Pty Ltd v Barwick [2004] NSWCA 137; Erickson v Bagley & Anor [2014] VCC 2126; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164
Judgment: Judgment for the plaintiff.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Ms R N Annesley QC with Ms B A Myers | Wisewould Mahony |
Table of Contents
Introduction
Issues in the proceeding
Witnesses and the evidence adduced at trial
Background
Work with the Defendant
The incident – the Plaintiff’s evidence
Cross-examination of the Plaintiff
Melanie Wilson
Leilani Polau-Thomas
Expert evidence – Sue Bottrell
The Defendant’s Answers to Interrogatories
Neneth Burgess’s affidavit
The Defendant’s evidence
Documents
Neneth Burgess
Louise Devereux
Credit
The Plaintiff’s witnesses
The Defendant’s witnesses
THE INCIDENT
(a) What was the scope and content of the duty owed by the Defendant to the Plaintiff?
Submissions
Findings
(b) Was it reasonably foreseeable the Plaintiff would suffer a recognisable psychiatric injury as a result of any breach?
Findings
(c) How would a reasonable employer have responded to the risk posed given the nature of the work performed by the plaintiff?
Cleaning the bathroom
Room allocation
Record keeping
The back off policy, police, duress alarm linked to a security service and an effective escape route
(d) Was any breach of duty a cause of the Plaintiff’s psychiatric injury?
Contributory Negligence
DAMAGES
The quantum evidence
The Plaintiff’s evidence
Pre-incident mental state
Pre-incident physical condition
Post-incident work
Post-incident treatment
Leilani Polau-Thomas
Taasi Malaga
The Plaintiff’s medical evidence – Treaters
Dr Gurusinghe
Antonio Ferraro
Catherine Ly
Dr Pham
Dr Akinbiyi
Antoni Centofanti
Medico-legal
Dr Evelyn Timmins
Dr Matthew Tagkalidis
The Defendant’s medical evidence – the Plaintiff’s treaters
Scott Street Medical Centre
Sunshine Medical Centre
Rosamond Medical Centre, Maidstone
Dr David Freilich
Mr Greg Etherington
Dr Richard Sullivan
Medico-legal – Dr Adlard
Wage records
GENERAL DAMAGES
The Plaintiff’s submissions
The Defendant’s submissions
Quantum findings
Economic loss damages
Legal principles
The Defendant’s submissions
The Plaintiff’s submissions
Findings
Appendices
Appendix 1 - Wintringham Aged Care OH&S Reporting and Investigation
Appendix 2 - The Plaintiff’s Incident Reporting
Appendix 3 - Register of Injuries
Appendix 4 - Mr Domenco Fiorito’s Progress notes
Appendix 5 - Map of Facility
HER HONOUR:
Introduction
1 The plaintiff was employed by the defendant at Ron Conn (“the facility”) as a Registered Nurse from 9 December 2011 until she ceased work in March 2015.
2 This proceeding relates to an incident at the facility on 13 February 2015 (“the said date”), in which the plaintiff alleges she was assaulted and or abused and threatened by a resident, Domenico Fiorito (“Dom”). She claims damages for pain and suffering and loss of earning capacity in relation to her resultant psychiatric injuries.
3 While the plaintiff’s case was based on seven allegations of negligence against the defendant,[1] failure to clean Dom’s dirty bathroom was the main allegation, together with failure to relocate him or his neighbour when aware of Dom’s problem with his neighbour’s incontinence.[2]
[1]Written submissions – Transcript (“T”) 1246
[2]T1100
4 The defendant admits that on the said date, the plaintiff was verbally abused and threatened by an elderly resident[3] but otherwise denies negligence. The nature and extent of the incident is in issue, with an evidentiary contest as to the acts and movements of the plaintiff and Dom and the role played by other staff in the incident.[4]
[3]Defence, paragraph 5
[4]T235
5 Further, there is no issue that the incident caused the plaintiff to develop Post-Traumatic Stress Disorder (“PTSD”); however, the nature and extent of the plaintiff’s pre-incident psychiatric condition and her pre and post-incident unrelated conditions are in issue.
6 The defendant says, however, that it was not reasonably foreseeable the plaintiff would suffer a recognised psychiatric illness as a consequence of any incident alleged to have occurred in the course of her employment with the defendant on the said date and that consequently, no duty of care owed by the defendant was relevantly engaged.
7 Even if there was such a duty engaged, the defendant did not breach it and/or no such breach was a cause of the injury, loss and damage claimed by the plaintiff. Further, it is alleged the plaintiff was guilty of contributory negligence by her failing to follow the direction and training provided to her by the defendant, call the police and to remain in the safety of the nurses’ station until Dom had calmed down.
Issues in the proceeding
8 J Forrest J, in Hardy v Mikropul Australia Pty Ltd[5] (“Hardy”), set out the issues which must be addressed in assessing whether the plaintiff can recover damages in cases of psychiatric illness alleged to have been caused by workplace events:
[5][2010] VSC 42
(a) what was the scope and content of the duty owed by the defendant to the plaintiff?
(b) was it reasonably foreseeable the plaintiff would suffer a recognisable psychiatric injury as a result of any breach?
(c) if yes, how would a reasonable employer have responded to the risk posed given the nature of the work performed by the plaintiff?
(d) if a breach is established (for example if the response of the defendant was not that of a reasonable employer), was that breach of duty a cause of the plaintiff’s psychiatric injury?
9 If I am satisfied as to (d), I am required to assess the plaintiff’s damages for pain and suffering and loss of earnings, both past and future.
Witnesses and the evidence adduced at trial
10 Liability evidence was given by the plaintiff, her former co-worker, Melanie Wilson, and OH&S expert, Louise Bottrell. Limited evidence as to the incident was also given by the plaintiff’s daughter, Leilani.
11 The defendant called two liability witnesses: the defendant’s current Service Development Co-Ordinator, Louise Devereaux, who was facility manager on the said date, and the plaintiff’s former co-worker, Neneth Burgess.
12 Numerous documents were tendered by both parties, including a number of videos of the incident scene. The defendant also provided a significant amount of further documentation during the hearing.
Background
13 The plaintiff is presently aged fifty-six, having been born in Tuvalu, an island north of Fiji, in September 1964. She attended school there to Year 10. She arrived in Melbourne in 1980. Between 1982 and 1986, she worked as an airline stewardess with Air Nauru, based in Nauru. She moved back to Australia in 1986.
14 For just over a year, the plaintiff worked as a cashier at Safeway and then worked for Telstra as a paging operator. She married in about 1989. In 1993, she was transferred to Perth with Telstra, where her first husband had family. She then became a credit consultant for that employer.
15 The plaintiff has three children with whom she resides in Melbourne: Leilani, born in 1992, Maree, born in 1994, and Andrew, born in 1995.[6]
[6]T39
16 At the end of 2000, the marital relationship deteriorated and the plaintiff decided to leave her husband. In January 2001, she came back to Melbourne with the children. She was divorced in 2002.[7]
[7]T40
17 On her return to Melbourne, the plaintiff transferred to Telstra’s Collins Street office, working as a credit controller in the corporate section.
18 In October 2013, the plaintiff married Taasi, who is also from Tuvalu. He is eighteen years her junior.
19 In May 2001, the plaintiff did a two-week Personal Care Attendant (“PCA”) course because she loved working with old people. She supposed “they became … [her] second family”.[8]
[8]T41
20 Initially, she worked as a PCA at Essendon Aged Care until enrolling in a three-year Bachelor of Nursing course at Ballarat University. She did the course full time on campus, worked nightshift and also cared for her children at home. She deferred for a year, because on a couple of occasions she nearly drove off the road with tiredness from her workload. She graduated in 2007 as a Registered Nurse, Division 1, Bachelor of Nursing.
21 The plaintiff did her graduate program at Western Hospital in 2009, working in the medical ward. She then went to Sunshine Palliative Care, where she worked at aged care facility, Edith Bendall Lodge, in 2010 as the after-hours co-ordinator.
22 The plaintiff then worked for about a year at Melbourne Health Cyril Jewell House in Avondale Heights, where she was one of the ANUMs – assisting nurse unit manager, on both day and nightshift. She was going well in that job until she was bullied by the new assistant manager, so she decided to leave.[9]
[9]T44
Work with the Defendant
23 The plaintiff commenced work with the defendant at the facility on 9 December 2011. The sixty-bed facility cares for men and women who are homeless or at risk of becoming homeless. It is the defendant’s only high care unit.[10]
[10]T45
24 The staff had to do everything for the residents. The plaintiff’s nursing role at the facility also involved showering and helping residents with their food. Some residents were ambulant and were able to go for out for outings.[11]
[11]T46
25 The plaintiff was the supervisor on nightshift. This role included distributing the medication at 10.00pm. She was in charge of the East and West Wings.[12] Initially, she worked at the facility four nightshifts a week, Friday to Monday. She also worked two nightshifts at another facility, Holloway Aged Care Services (“Holloway”).[13]
[12]T61
[13]T46
26 In 2013, the plaintiff gave up her Monday nightshift at the facility because it was not like a normal nursing home where the residents were nice to her:
“… I’ve never been abused by anybody and that was the first time I got abused, I got called every name under the sun, even though I was, you know, being – treating the people nice, you know that and they still if they don’t get their cigarettes or alcohol they just call you everything under the sun, you get abused every day and every shift.”[14]
[14]T46; T585 confirmed by Leilani
27 In 2014, the plaintiff swapped from nightshift to three morning shifts at Holloway – Tuesday to Thursday.[15] As at the said date, she was working those shifts and nightshift at the facility, Friday, Saturday and Sunday nights. She thought she was working about fifty-six or fifty-seven hours a week on both jobs.[16]
[15]T51
[16]T52
28 When the plaintiff started with the defendant, Julie Thompson was the manager. She was replaced by Louise Devereux in mid-2014.
29 The plaintiff attended staff meetings, which occurred every month. Also in attendance were all other senior staff and the Division 1 and 2 nurses, depending on the shift they were working. Minutes were kept. The meetings were to discuss any general issues in the facility and how everyone was going.[17]
[17]T55
30 At the meetings, topics included the residents not getting their medication, the facilities being very dirty and staff not completing their tasks on their shifts. Also raised were “outbursts from other residents by Domenico with his shared bathroom issues”.[18] She could not recall if her suggestion in January 2014 of resident Grant Allen being moved was discussed at a staff meeting.[19]
[18]T56
[19]T57
31 In terms of training as to how to deal with people like Dom, the defendant had a policy when someone was aggressive: You try and talk to them and if they do not calm down, you have to back off and leave them (“the back off policy”) . She first saw the 2012 “Aggression and Violence” policy[20] when she started, and it was part of the orientation pack. Whenever an incident happened, and also during annual training, the policy was discussed.[21]
[20]Defendant’s Court Book (“DCB”) 10
[21]T110
32 In September 2014, the plaintiff had a yearly performance development review.[22] She wrote on the review form that management needed to be aware that not all staff are doing their jobs according to the defendant’s policies and procedures and that she needed support from management to take action when a job is not done by staff. She went through this issue with Ms Thompson, but nothing happened.[23]
[22]T59
[23]T60
33 The residents’ files were accessible to the plaintiff. If there was something clinical that she needed to document, she wrote it in the progress notes. The residents’ files, including the progress notes, were in the nurses’ station.[24] Every shift should have been documented, especially with a resident with a lot of problems.[25] After Louise Devereux took over, it changed so that matters were only noted if they were of significance to the care of the patient or the staff.[26]
[24]T61
[25]T372
[26]T400
34 Residents were able to be moved in the facility. Abdul was changed from East to West when Louise was in charge. He was physically aggressive and abusive towards staff.[27]
[27]T81
35 On 25 January 2014, when Ms Thompson was the manager, the plaintiff completed a “Feedback and Improvement Form” in which she set out:
“Feedback or Issue for Improvement
Domenic Fiorito very angry with Grant Allen for making a mess in the bathroom & toilet @ 0645. Screaming at the top of his voice & yelling abuse at Grant and waving fist in the air. Domenic wants social worker to come & see this shit place, trying to attack staff & punching the window, yelling & screaming.
Suggested Improvement
Grant Allen to swap rooms [with] John Serong so he can share the bathroom [with] Noel Turner to prevent Domenic from verbally abusing Grant & staff.”[28]
[28]Plaintiff’s Court Book (“PCB”) 569
36 The plaintiff documented this because Dom was complaining about his bathroom being very dirty. He was in Room 46 West and shared a bathroom with Grant Allen. She suggested Grant Allen swap rooms because he had faecal incontinence and he would make a mess. Dom did not like him because he dirtied the bathroom. Moving John Serong would have been better, because he was continent and could go to the toilet by himself and would not make a mess.[29]
[29]T57
37 The plaintiff thought this issue was discussed at a staff meeting at one stage, but she could not remember.[30] Her suggestion was never followed.
[30]T57
38 Improvement notices or forms would be put in a box at reception. After several times, the forms she submitted were not acknowledged, so she decided, before submitting them, to photocopy the forms and keep a copy, and put the original under the manager’s door.[31]
[31]T58
39 Before the said date, she was familiar with Dom and had access to his file. He was there before she started with the defendant. She knew he was a violent man and that if he did not get his way, he would get physical or verbally abusive with the staff, “anyone that’s in his way”. She knew of particular triggers to outbursts when his medications were not given on time, when his bathroom was dirty, or when his meal did not come on time.[32]
[32]T62
40 The plaintiff had observed this sort of behaviour when the staff were late giving Dom a shower, or they were held up with something, and he would become angry and start abusing them after five or ten minutes. He punched somebody – one of the other residents – and he would pick up his frame and start hitting the walls and the windows, the nurses’ station as he did on the said date.[33]
[33]T62
41 Before that, one morning before 2015, when she had finished her work and she was doing her notes, she saw Dom getting angry with the staff and hitting his wheelie frame, picking it up and hitting the walls.[34]
[34]T63
42 The plaintiff could recall hearing a loud voice when working one night with Tamara Carter. Tamara came running in the hallway and Dom was behind her, yelling and screaming, and saying he was going to kill her.[35] Tamara was shaken and started crying. She left not long after that incident.[36]
[35]T63
[36]T67
43 A month or two before the said date, there was another incident when the plaintiff was in the nurses’ station and Dom just started going off, yelling and abusing, and swearing because he did not get his paper.[37]
[37]T63
44 Dom was massive, about six foot four. He had a big build and weighed more than 110 kilograms. When he was in these moods, she felt very scared. She did not want to go near him in case he got hold of her, and she did not know what he would have done to her.[38]
[38]T64
45 The plaintiff was aware of the contents of Dom’s Resident Care Plan updated on 27 August 2014[39] in which his verbal behaviour was described as, inter alia, agitation, aggression, verbal demanding, making loud noises or screaming and swearing. His physical behaviour included agitation/aggression, “physically threatens or does harm to self or others property”. Under other behaviours, it was recorded there is “potential for aggression based on past behaviour …”. Likely triggers for behaviour included “co-resident making a mess in the shared ensuite”.
[39]T68; DCB 114
46 At the time of the incident, Dom was sharing a bathroom with a new resident, Colin. Grant Allen had passed away. Colin had mental health issues, was incontinent and obese. He replaced Grant because it was the room that was available when he was admitted. A lot of the residents were incontinent, but not to the stage like Colin, who played with his faeces. He smeared it on the floor, on the sink and all over the bathroom.[40] He had been Dom’s neighbour for probably up to a month before the incident.[41]
[40]T69
[41]T70
47 The plaintiff was not sure there were any rooms in the facility that had a private bathroom.[42]
[42]T71
48 “Interventions by Staff” in Dom’s Care Plan set out “staff are to ensure 1 hourly sighting chart of the shared ensuite is completed and if a mess is found, staff are to clean it immediately”.[43] Every time the staff checked the bathroom, they then had to clean it and then sign a form saying they had checked the bathroom in that hour. The sign-in sheet was kept in the West nurses’ station.[44]
[43]DCB 114
[44]T71
49 Dom was the only resident who had a one-hourly signing chart for his bathroom, and that had been in operation since 2014 – “It was introduced because of his behaviour, every time he goes in there [the bathroom] and it’s dirty, he will become very violent and aggressive towards staff … .” Whoever was on duty had to go and check Dom’s room every hour and make sure it was clean until their shift was finished, and then it was supposed to be noted on the sheet.[45]
[45]T72
50 The entry in Dom’s Progress Notes for 17 February 2015, after the said date, read:
“Sighting chart commenced for bathroom to prevent repeat episodes of aggression noted on 13/2/15.”[46]
[46]Appendix 4
51 This note was to ensure the bathroom was clean to prevent Dom from getting angry and abusive.[47] There was an ongoing chart, but a lot of people do not sign it, and she supposed they just put it aside and forgot about it. She knew about the chart before the incident because the girls on nightshift kept complaining about the morning and afternoon shift not completing it.[48]
[47]T105
[48]T107
52 Dom was prescribed an antipsychotic, Alepam, before the incident.[49]
[49]T106
The incident – the Plaintiff’s evidence
53 The plaintiff’s shift started at 9.30pm on the said date. When she got to work, she went straight to the handover. She entered the facility via the front door, walked south along the corridor past the staffroom, and then turned left and went into a little room which had a hallway outside it which was being used at that time for handover.[50]
[50]T82; Appendix 5 marked “HO” by her on the map
54 At handover, the previous shift gave the next shift details about what had been happening with residents during their shift and any upcoming issues or doctors’ visits. Present that night at the handover was the RN afternoon shift and the four nightshift staff - the plaintiff, Melanie and Neneth. She could not remember the other person. When the plaintiff arrived, she was told that there was a doctor in West.[51] She thought Melanie went to the staffroom to put her food in the fridge. The plaintiff went to West to see the doctor.[52]
[51]T75
[52]T76
55 “It was just a normal handover. Nothing saying … [Dom] was agitated or aggressive … .” The earlier shift had to tell them about each resident and if there had been any changes and “they just go, ‘Dominic (sic) got no changes’”. Every resident was discussed in the handover.[53]
[53]T82
56 In cross-examination, the plaintiff’ said that at 9.30pm, she had a “quick” handover because the doctor was in West. She asked the RN to give her all the “important stuff “she needed to know. She was there for the first 20 minutes of the handover.[54]
[54]T157
57 The plaintiff did not think there was anything different with Dom – “They didn’t tell me that he was angry, they didn’t tell me that he was agitated or upset, nothing. … I will remember if they did tell me that he was agitated … .”[55]
[55]T161
58 The plaintiff then went to the West section to see the doctor. She entered the nurses’ station, near Room 31. She was with the doctor for maybe 5 minutes.[56]
[56]T76, T164
59 That was when Dom came yelling and screaming from Room 46. He was calling, he was yelling and screaming and saying “‘the effing places (sic) is dirty’ and we’re ‘bastards’, and when he came closer he’s calling – he saw me and then he called me a ‘black bitch’, I’m a ‘black bastard’, he’s going to kill me”.[57] He “was coming from his room screaming and yelling while the doctor was still there …”.[58]
[57]T83
[58]T164
60 The plaintiff asked Dom what the problem was, and he told her that at 8 o’clock he rang for staff, a staff member went to him and turned the buzzer off and he told her his bathroom was dirty. The “girl” said that she would come back but she never did. The plaintiff told Dom “‘we’re the night staff, we don’t know your bathroom was – is dirty, because we just started’”. She told him not to worry, that she would get someone to clean it for him but “he wouldn’t stop, he’d just carry on”.[59]
[59]T84, confirmed in cross-examination at T306
61 Melanie then came into the nurses’ station. Dom was on the other side of the glass, near Room 31. The plaintiff could hear him because there was a little gap in the door. Melanie tried to calm Dom down, but he was not listening to her. He was focusing on the plaintiff and calling to her “that I’m a ‘bastard’, I’m a ‘black bitch’ and saying he’s gonna kill me with his own bare hands”.[60]
[60]T85
62 Dom picked up his frame, hit the glass window and he was kicking the door and rattling the door and trying to get in. The plaintiff was very scared. She thought he was going to break the glass because he is a big man. He picked up his wheelie frame and hit the glass twice so she stopped talking to him. She backed off and Melanie was talking to him and that did not work. She and Melanie were then both inside the nurses’ station.[61]
[61]T85
63 The plaintiff described how Dom:
“… picked up his frame, he hit the glass [window] and he sort of grabbed the door and was rattling the door, and I thought the door was going to open.”[62]
[62]T171; T85
64 The plaintiff then sent Melanie to clean Dom’s bathroom. Melanie went out though the door opposite Room 60 to do so. The plaintiff just stayed in the nurses’ station in a position where Dom could not see her.[63]
[63]T85
65 The plaintiff tried to get out of the nurses’ station to go around the door opposite Room 60. Dom saw her and he came around, so she had to go back in. This happened over the other side as well, so she just decided to stay and wait for somebody to come into the nurses’ station. While this was happening, Dom was still vocal and very physical, hitting the doors and windows and punching with his fist. She was very shaken and scared.[64]
[64]T86
66 Melanie came back in through the door near Room 60 and told her the bathroom was clean, but Dom would not stop the verbal abuse and kept hitting the walls, the door and the windows. Melanie was talking to Dom from inside.[65] Melanie went closer to where Dom was standing and tried to talk to him, but Dom was concentrating on the plaintiff yelling abuse at her instead of acknowledging Melanie’s presence. He was calling the plaintiff a “black bitch” as she was “the only black person in there”.[66]
[65]T86
[66]T112
67 That was when the plaintiff sneaked out of the nurses’ station by the door near Room 60, because she had 10 o’clock medications to give out on the other side. She thought it was about thirty or forty minutes from the time Dom first approached the nurses’ station and she was able to sneak out.[67] It was going onto 11 o’clock. Later in cross-examination, she said she had been stuck in the nurses’ station for nearly 45 minutes.[68]
[67]T87
[68]T177
68 The plaintiff went down the hallway to go to the lift. She turned right into the hallway, heading towards the staffroom. Before she got to the intersection where the hallways crossed, Dom came from outside Room 60. She started running to the East section, past the handover room. She was heading to the East drug room - in the direction of Westminster Drive.[69] She described her route on the map and wrote “Dom” where Neneth stopped him.[70]
[69]T88
[70]T123 - Appendix 5
69 Neneth managed to take Dom outside to the front, past reception. The plaintiff then started walking to the drug room. She then locked herself in that room. She received the usual text from her daughter, Leilani, asking if she needed anything. She texted Leilani that she was not good, and Leilani quickly rang her. The plaintiff was in tears. Leilani asked her “what happened?” and said to her “‘You can’t work like that. You need to go home. Call the manager, tell her to come and replace you.’”[71] She told Leilani she would ring the manager. She thought Leilani told her to ring the police.[72]
[71]T90
[72]T91
70 The plaintiff and Neneth were in the East residents’ medication room for about five or ten minutes. Neneth had told her that it was alright, Dom was outside and he was not angry, and therefore they went to do the medications which took two to three minutes.[73]
[73]T92
71 The plaintiff then went with Neneth down the same hallway and turned right at the big room. When they were just going past that room, Dom was coming from the front. He saw the plaintiff and started swearing and screaming, so she just ran.[74]
[74]T92
72 Dom was close to the staffroom and she was looking straight ahead at him. She ran into the handover room and locked herself in there. Melanie came in not long after. Dom was still screaming and yelling. Neneth also came. Dom was still yelling and screaming and calling out everything. He kept repeating he was going to kill her with his bare hands and she was a “black bitch”, she was a bastard and he was going to kill her.[75]
[75]T93, T124
73 The plaintiff rang Louise Devereaux at home from the office just after 11.00pm and told her she was in a really bad state. Louise told her to stay there until she came. They were in the handover room for another ten minutes or so and Neneth went out and talked to Dom and walked him back to his room.[76]
[76]T94
74 The plaintiff stayed in the handover room with Melanie. Neneth came back and said Dom was alright; he was in bed now. The plaintiff then went to do the rest of the medication in East.[77] She was in the nurses’ station in the East section, not in the handover room, when Ms Devereux arrived.[78]
[77]T94
[78]T315, Ms Devereaux’s recollection she found the plaintiff in the supervisor’s room was unchallenged
75 The plaintiff confirmed the contents of Dom’s Progress Note[79] she had written that night. In cross-examination, she said her practice was to note the date and time a progress note was made but said that she made an error in the time of the note on the said date – it should have been timed as made at 23:30 not 22:30.[80]
[79]Appendix 4
[80]T180
76 When it was suggested to her she could not have written the progress note at 11.30pm, she explained:
“I’ve just written it on the piece of note, progress note that I took from my end. …
I don’t have to go to West to write it.
The file lives in west but we have this progress notes on the other side as well.
I would have got there after Louise or I just wrote it at the nurses’ station where I was.”[81]
[81]T335
77 The plaintiff thought it was more than 20 minutes from when she asked Melanie to clean the bathroom until she came back to the nurses’ station and said it was clean.[82]
[82]T95
78 The plaintiff confirmed the contents of the Incident Reporting form[83] completed by her on the handover shift the night after the incident. She had to put the form in the reception box for the manager.[84]
[83]Appendix 2
[84]T96
79 The plaintiff was not involved in the preparation of the Wintringham Aged Care OH&S Reporting Investigation.[85] The only information she provided was to Louise when she came in that night.[86]
[85]Appendix 1
[86]T108
80 Louise completed the Register of Injuries[87] in the plaintiff’s presence on 2 March - the morning she wanted the plaintiff to go home.[88] The plaintiff was noted as entering the details - “Resident was extremely abusive and threatening, chasing me and banging on windows. I am now very anxious about coming to work and have high blood pressure.”
[87]Appendix 3
[88]T108
81 She did not think about ringing the police because she was told Dom was already calm and sitting outside. On several previous occasions, she had to contact the police and had to wait. The police took a while, probably half an hour or more. They turned up when Abdul was aggressive, but everything was alright then. On another occasion, they did not turn up. They were told somebody would come, but nobody did.[89]
[89]T97
82 She could remember ringing the police about ten or more times for residents being aggressive and threatening staff. She thought, out of five or ten times, they attended three or four times. The police are only about two minutes down the road, but they always take more than twenty minutes. The slowest response was about forty-five minutes.[90]
[90]T98
83 Louise told her to wait. Louise came in around midnight. By that time, everything was settled, Dom was in bed and the plaintiff was trying to do her audits and paperwork. Louise asked her if she wanted to go home, but if she had, they would have been short staffed and they would not have been able to get a replacement because the agency was closed at 11.00pm.[91]
[91]T100
84 She said she would finish her shift as it was unfair to leave the others short staffed because of “[her] mistake”. She was like a nervous wreck. She thought she was having a heart attack. She did not want other people to suffer because of her.[92]
[92]T101
85 On the night of the incident, the back off policy did not work with Dom, and every other time that Dom was angry, when staff backed off, that did not work. “So it takes somebody else to come in and – and actually speak to him to calm him down. But if you try and back off, he just won’t leave you alone, he’s still coming at you.”[93]
[93]T110
86 The back off policy did not work with Tamara Carter or on the night of the incident. The plaintiff backed off, she kept herself away from Dom so he could not see her, and he was still angry and verbally abusing her.[94]
[94]T111
87 There is a phone permanently in the nurses’ staffroom. They also have a battery powered handheld DECT phone, which enables the landline to be called and ring others with a DECT phone. Neneth and Melanie would have had DECT phones that night. They are carried in your pocket or on your trolley.[95]
[95]T113
88 The plaintiff had not picked up the DECT phone from the RN on the afternoon shift because she quickly took the handover and went to speak to the doctor. The PM RNs have the phone. If she had had the DECT phone it probably would not have made any difference, because she was scared, panicked and just forgot what to do.[96]
[96]T114
89 She worked with a duress alarm at Broadmeadows Health Service, which was high and low care. When staff pushed a button, a security guard in the facility comes.[97]
[97]T115
90 After the incident, Colin was moved to another room – one of the corner rooms away from Dom – but he was later moved to East because that did not work out. He liked to play the piano and was making a lot of noise and upsetting Dom and the other residents.[98]
[98]T104
91 The plaintiff’s case was reopened when further documents, including minutes of staff meetings and further complaint forms, were provided by the defendant.[99]
[99]T376
92 When taken to gaps in Dom’s Progress Notes, the plaintiff said: “The notes are missing, and … I think they’ve been taken out deliberately by Wintringham people, they send the notes to their lawyers.”[100] She earlier said she had looked at the notes and there is a whole week where the notes are missing.[101]
[100]T368
[101]T270, T365ff confirmed in re-examination
93 The plaintiff confirmed the minutes of the staff meeting on 24 October 2014[102] which set out details of movement of a number of residents. One was moving to another facility and another was on the waiting list for another facility. Alternative accommodation options were being considered for another resident, “RB”, following his assault on “JP”.
[102]PCB 459
94 In a complaint form dated 24 November 2013 completed by the plaintiff, she noted that sighting charts had not been completed in relation to a number of residents.[103]
[103]T397
95 The plaintiff also made a written complaint on 9 February 2014 detailing failure of staff to respond to a resident’s buzzer for assistance to use the toilet as they considered it a false alarm. She suggested staff must answer the buzzer and not assume it is a false alarm.[104]
[104]T399
96 The plaintiff described her movements during the incident, identifying various locations on her map.[105] “MR” was the medicine room. “HO” was the handover room. Dom’s room was No 46.
[105]Appendix 5
97 In black Biro, she marked her exit from the nurses’ station from the door near Room 60 where she came out/escaped to do the medication in East. The other exit was near Door 31. She wrote “Dom” where he was standing when she was coming down where Neneth stopped him and took him out.[106]
[106]T123
98 The orange Texta line showed the plaintiff’s route back from the drug/medicine room in East when she again encountered Dom and then she ran into the handover room.[107]
[107]T124
99 The plaintiff remembers the night of the incident. She wrote down the events in a notebook when she went home. She made the notes on the night or two days after. She had not discussed the notebook with her solicitor. In cross-examination, she was asked to produce the notebook.[108] It was produced but she was not cross-examined on its contents. It was tendered in further re-examination.[109]
[108]T217
[109]T462
100 While providing a lot of detail as to the incident, in summary she described Dom’s complaint about the earlier shift, his aggressive behaviour and threatening to kill her, Mel cleaning the bathroom, finally being able to sneak out of the nurses’ station but then being chased by Dom, giving out the medications, being chased again by Dom and finally running into the handover room and ringing Louise.
Cross-examination of the Plaintiff
101 Lengthy cross-examination in relation to the incident circumstances focussed on what occurred at the handover; the duration of the incident; the plaintiff’s contemporaneous reporting of the incident; whether she was chased; Dom’s behaviour during the incident; Neneth’s role in the incident and in particular, her evidence that she cleaned the bathroom; what steps the plaintiff could have taken in terms of compliance with the back off policy and calling the police; and, finally, the arrival of Ms Devereux and action taken by her.
102 Those parts of the evidence in relation to the incident relied on in particular by the defendant have been referred to above.
103 Further, when it was suggested to the plaintiff she should have stayed in the nurses’ station if she was concerned about her safety and Dom being focussed on her, she stated:
“No because the more I stay there the more angry he is so the back off – Wintringham’s policy is to back off so I tried to back off and get out of the situation but he wouldn’t …
… … by me leaving that’s me backing off from Mr Fiorito according to the policy and procedures.”[110]
[110]T177
104 The plaintiff had to give the residents their medication. It was important for them and if she did not give it to them, she would “get more violence on [her] hands”.[111]
[111]T279
105 She could not give Dom his Alepam to calm him down that night:
“How can I give him a medication when he is trying to kill me?”[112]
[112]T257; T411
106 She did first try to calm Dom down –
“I found out what the reason is with Domenico, why he’s angry, … his bathroom. I solved the problem by sending this Melanie to clean the bathroom. That didn’t help. He was still going off angry and physically hitting the windows and the doors and abusing me calling me ‘black bitch’, I’m a bastard … .”[113]
[113]T233
107 The back off policy also did not work with Tamara Carter. When she backed off –
“… he still carry on and abuse her, and tried to threaten to kill her. So that’s why Tamara went running down the hallway to the east to get me, to go and try and stop him. And when I met him, I spoke to him and he calmed down. But Tamara – even though Tamara backed off, he didn’t stop, he still carried on.”[114]
[114]T249
108 The plaintiff confirmed that she started running when she saw Dom coming around the corner.[115] She ran because –
“… he was following me so I’m not going to stand there and wait for him to come and kill me.”[116]
[115]T175
[116]T177
109 The plaintiff disputed what she was told would be Neneth’s evidence of the incident, accusing her of lying as to a number of matters.[117]
[117]T309ff
110 The plaintiff agreed that prior to the incident, she had not made any complaint about security.[118] Her feedback form in early 2014 involved Dom being angry with a resident, not with her. She “didn’t think about the security bit, [she] was only thinking to prevent the situation, maybe move the resident and put someone else in there, so that Domenico does not go off. [I] don’t think about the security or anything.”[119]
[118]T252
[119]T254
111 The triggers were already set out in Dom’s Behaviour Management Plan. What else could she do to change his behaviour? – “Resolutions for the triggers are there for staff. And how many more things we have to put down and it still doesn’t work?”[120]
[120]T255
112 In her Answers to Interrogatories, the plaintiff answered “I don’t believe so” when asked whether, prior to the said date, she had made any report, complaint or notification with respect to any assault, abuse or threatening behaviour by Dom.[121] She gave this answer, as before that date she had not been assaulted or threatened or badly abused by him.
[121]Interrogatory 4(c) - Answer sworn 30 January 2020
113 The plaintiff had answered “I don’t believe so” when asked whether, prior to the incident, she complained to, reported to or notified the defendant of any concerns she had regarding Dom and the cleanliness of his bathroom and/ or the schedule for cleaning his bathroom.[122] That was actually wrong, because she had put in a complaint form. Her memory is shocking; she cannot remember “that stuff”.[123] It was also wrong when she said she did not believe that she had made any complaints, a report or notified the defendant about the cleanliness of Dom’s bathroom and/or schedule for cleaning of his bathroom before the incident.[124]
[122]Interrogatory 6(a) and (b)
[123]T265
[124]T266
114 The plaintiff had also made complaints before the incident related to medication being administered to every resident, not just Dom. The defendant put people who were not skilled on shifts to work with her.[125]
[125]T267
115 The plaintiff made complaints, including on a number of occasions at staff meetings, to the effect that staffing was inadequate for the type of care needs for the residents. The residents were very difficult to handle. There were issues with staff not being skilled on how to approach a resident in terms of giving medication or turning a patient safely. She had to train staff working with her on nightshift.[126]
[126]T269
116 When it was suggested that she had not complained about Dom’s aggressive behaviour before the incident, the plaintiff had put in a suggestion form and asked, “Is that enough?”
“Wintringham should have known that – management should have known that so many incidents and – about this man has been submitted or reported, they should have known that it’s not working. I’m not the only one complaining, everybody else is complaining about this particular man, abusing and threatening everybody, so everybody’s putting in, there’s so many incident reports in his progress notes … .”[127]
[127]T270
117 The plaintiff agreed that pre incident, she was not struggling psychologically with having to deal with aggression in the workplace:
“I was fine, I was dealing with the job, handling everything fine, nobody put in any complaints about me. I did my job. I never slept on nightshift.”[128]
[128]T303
118 The plaintiff did not know why residents could not be moved.[129]
[129]T256
119 There was further cross-examination after the plaintiff’s case was re-opened.
120 The plaintiff had “flicked through” the additional progress notes that were provided by the defendant. When it was suggested it was quite rare for Dom to be abusive or aggressive (12 incidents in 2011, 21 in 2012, 14 in 2013, 16 in 2014 and one in early 2015), she thought there were more than one hundred incidents:
“It’s not rare, he’s always abusive towards staff….
Making out that it’s only occasional, it’s not occasional. It’s all the time he’s aggressive and abusing everybody.”[130]
[130]T403
121 She agreed Dom had several triggers and they were unpredictable in relation to what might set him off and when.[131] She denied that on the majority of occasions he would settle quickly.[132]
[131]T404
[132]T410
Melanie Wilson
122 Ms Wilson was working as a nursing assistant at the facility when she met the plaintiff, with whom she worked nightshift. She started in 2006 and finished with the defendant in 2017.
123 She started work at 9.30pm on the night of the incident. There were four on the shift: the plaintiff, Neneth, herself, and another staff member. She thought it was Anthony, but could not actually remember, but he was male.[133]
[133]T468
124 The first thing that happened was handover. It generally takes about half an hour,[134] and they write on the handover sheet any changes with the resident, going through it with the previous shift supervisor. The handover that night was in the old hairdresser’s room.[135] It was just a normal handover – “There wasn’t much handed over, to be honest. … They had a pretty good afternoon.”[136]
[134]T469
[135]T470; T566
[136]T471
125 She then went to the staffroom to put her food in the fridge, and that was when she heard a lot of yelling and screaming coming from the West dining room.[137] She could hear Dom yelling. She knew it was him because she knew his voice. He was yelling and screaming about his bathroom being dirty and not cleaned.[138]
[137]T471
[138]T472
126 She walked down the hallway and tried to calm Dom down. At that stage, he was near Room 60. She “sort of tried to calm him down”, and then went into the nurses’ station.
127 Straight away the plaintiff asked her to go and clean Dom’s bathroom, so she went to clean his bathroom in Room 46. She and the plaintiff were the only ones in the nurses’ station. Neneth would then have been on East, counting drugs. She was not sure if the doctor had then left or whether he was still in the West nurses’ station.[139]
[139]T474
128 She explained to Dom she was going to clean for him, that she just had to get the mop and she would be back to clean the room. He was very, very aggressive, and already in a state. He was very, very angry, and he just kept repeating that he had told the previous shift that his bathroom was dirty. She could not remember what time he actually told the staff, but he kept saying he had told them and they did not come and clean it, and he was really angry because it had not been cleaned.[140]
[140]T475
129 She came out of Dom’s bathroom when it was clean, and she ended up back in the nurses’ station with the plaintiff. She was a nervous wreck, because while she was cleaning, Dom was “going mad the whole time,” and when she went back to the nurses’ station, he actually had his walking frame and had smashed it into the wall of the nurses’ station at least twice. He was also punching the glass of the station. She could not recall how many times, but it was many times, and he actually had hold of the metal bar outside the door of the station, pulling on it with all his weight, back and forth, back and forth.[141] He weakened the brackets on the doors, which were later fixed.[142]
[141]T475; T558 adding “where the glass and wall are joined”
[142]T486
130 Dom is very big and very strong. He has a little wheelie frame that he uses to walk with just to steady his balance.”[143]
[143]T476
131 No one helped her clean Dom’s bathroom. It took her about 20 minutes from start to finish. She had to scrub the walls from the top of the toilet. The toilet button was caked - “It was caked on to around the bowl on the floor, on the toilet roll, everything had to be cleaned. Everything had to be changed.”[144]
[144]T476
132 She could recall, because she was actually sweating by the time she got out of the bathroom. She had had to scrub faeces off it. It was dry. Some of it was wet, but three-quarters of it was dry, and that was why it took her 20 minutes to actually scrub it. She is a bit fussy, and it needed to be done properly. She was actually shaking while doing the cleaning, as Dom was still carrying on. She had all the doors open so she had a way out, to escape.[145]
[145]T477
133 She could recall Dom being “very racial” and very derogative towards the plaintiff, “just calling her a nigger, black – this – slut, a moll. Like just slamming on the things, saying you know, ‘You’re nothing but a Negro, go back to your own country, you don’t deserve to be here’.” But he was also telling her she was a “white piece of trash,” and saying a few things like that to her as well. Three quarters of it was directed at the plaintiff. Dom just had it in for her, and he was saying “If I get you, I’m gonna kill you, I’m gonna kill you. It was quite full on, actually ... A lot of it was racial.”[146]
[146]T477
134 When she finished the cleaning, she went back to the nurses’ station, and that was when all the yelling and screaming was happening. She thought Dom had the plaintiff up near Room 31, so she went in the door at Room 60, and then they were both in the nurses’ station together. Neneth was not there. If she could recall rightly, when she was cleaning Dom’s bathroom, Neneth had taken him out the front, because afterwards Neneth said that she took him out the front for some fresh air.[147]
[147]T478
135 But then Dom came back in, and that was when he started up again. Everything happened so fast, and then she and the plaintiff were actually locked in that nurses’ station, and Dom was running up from end to end, punching, yelling and screaming. Neneth would have been on East, attending to other residents. The residents were all quite frightened, and she had to go round and reassure them, quite a while after she cleaned the bathroom.[148] Neneth had taken Dom out the front to settle him down a bit, which he did. She then did her round to check the residents and then went back to the hairdresser’s room where she found the plaintiff who was very shaken up from the incident.[149]
[148]T478
[149]T479
136 It felt like an eternity while she and the plaintiff were trapped in the nurses’ station, maybe for 10 or 15 minutes, but it felt like a very long time.[150] Dom continued to be very angry outside and was pushing staff trolleys. They were trying to calm him down, telling him it was okay and the bathroom had been cleaned, to nil effect. The plaintiff was shaking, and she was actually in tears. She had not seen her like that before.[151]
[150]T479
[151]T480
137 She distracted Dom up one end of the nurses’ station because he was going back and forth so many times just enough for the plaintiff to get out, and she ran towards East, from Room 60.[152]
[152]T480
138 She then had a chat with Dom and tried to settle him down. She made him a Milo and sat him at the dining table. She showed him his bathroom and explained that it was clean.[153] It took a long time for him to try and relax. She did not feel very safe out of the nurses’ station, but she just had to go “blind man’s bluff” and be strong. She had to carry on without sounding rude. He was sitting at the table drinking the Milo and she had to go off on her own to tend the other residents while the plaintiff was on the other side giving medication. She did another round of the residents and then went to find the plaintiff to make sure she was ok.[154]
[153]T480
[154]T481
139 Probably not very long after she made the Milo, she found the plaintiff in the handover room, shaking. She rubbed her back, saying “It’s okay, Soso. It’s okay.”[155] She had entered the handover room with a lock and key.[156] The plaintiff was very emotional, crying, shaking. She was a mess. There was no one else there until Neneth came in.[157]
[155]T481
[156]T495 – there was in fact a swipe card
[157]T482
140 They were all in there for about five minutes, and then had to go on with their duties. Once Neneth was there, Neneth “sort of held [the plaintiff’s] hand,” and she was able to go and do her other work.[158] She could not remember seeing Louise on the night. The plaintiff may have called Louise to come.[159]
[158]T483
[159]T484
141 After giving Dom the Milo, she did not remember doing anything further about him. She thought he put himself to bed because he is quite independent although high care.[160]
[160]T483
142 Prior to this night, she had seen Dom become quite verbal and loud at her quite often. His trigger was a dirty bathroom. It was one of his main triggers. It was written in his care plan, and staff had to tick a sheet to say it had been cleaned, which she did.[161] His was the only specific sighting chart for a clean bathroom.[162]
[161]T484
[162]T486
143 Colin was very incontinent. He could not help it, and he was very frightened of Dom because Dom would “go mad at him all the time”. Dom’s predecessor was also incontinent, so Dom “didn’t have a good run with flatmates”.[163]
[163]T484
144 Before this incident, residents were often moved if there were clashes with other residents or they were not appropriately placed to start with. She was aware of a suggestion that Colin be moved because he was very incontinent and that was one of the main triggers for Dom. He was moved a little while after the incident.[164]
[164]T485
145 The “back off policy” was very unsuccessful with Dom.[165]
[165]T486
146 She just made notes of exactly what happened that night - “Like [I] had to clean the bathroom, how long it took due to Y. And that the resident was very agitated. Tried to calm down, but was unsuccessful.”[166]
[166]T487
147 She thought she would have put in an improvement form. She thought she had written at least about a page of text that evening, and would have written it straight away, by the time everything settled down, about 11.30pm.[167] She agreed no such note appeared on Dom’s file. Her note would have been in his progress notes before the plaintiff’s entry.[168]
[167]T488
[168]T490
148 She had been present many times when the police were called. They could take quite a long while to come. There was a quite major incident, and it took them over an hour. They do not always come. If it is not serious enough for them to come, they do not.[169]
[169]T491
149 The incident on the said date was probably number one in the seriousness of incidents she had witnessed. She felt very unsafe, and was also shaking, and she suffered a lot of anxiety that night and since. She felt safe in the nurses’ station, but Dom was pulling the door so hard she thought he was actually going to pull it open, and if he had got his hands on the plaintiff, he really would have hurt her. He would have also hurt her, but, she did not know how, but she “somehow sort of calmed him down a little bit”. In the state Dom was in on that night, it was not feasible to give him medication for his aggression.[170]
[170]T492
150 She thought there were a couple of empty rooms in the facility at that time, because they had made suggestions for Colin to be moved. They filled out the forms and they were handed to management. They often filled in a lot of forms for improvement, to have him moved because of his incontinence. She knew she put in a form, as did the plaintiff. She thought, but could not remember, “Gaye” putting in an improvement form, just “so that we don’t have incidents like this happening with Domenico”. She never personally got a response to any of the incident reports she had written in the eleven years she was there.[171]
[171]T497
151 She mentioned Colin being moved at a staff meeting before and after the incident because of his incontinence. It was not fair on Colin and it was not fair on Dom. Colin was moved after the incident.[172]
[172]T498
152 In cross-examination, Ms Wilson said she had a memory of this night because “it was quite, you know, full on, to be honest”.[173] The handover that night went for about 15 minutes.[174]
[173]T499
[174]T500
153 She confirmed she heard the commotion after she had put her food in the staffroom fridge. She tried to speak to Dom, and the plaintiff asked her to clean his bathroom. She had not been speaking to Dom very long at all in the dining room. She just tried to find out what the issue was, and then she had to get all the mops and everything. While she could not remember exactly, Dom said: “My fucking bathroom is full of fucking dried faeces.”[175] Of course you can hear through a closed door. It is not soundproof.[176]
[175]T505
[176]T507
154 She went and checked his room, and, seeing that it was dirty, went and got the mop, and came back and cleaned and scrubbed it.[177] From very start to finish it was actually quite a long time to clean the bathroom – “You know, that’s how hard it was stuck on there, I had to scrub the bloody stuff.” The faeces had been there for a long time “just from … [her] observation … and experience”.[178]
[177]T506
[178]T517
155 After she had cleaned the bathroom, Dom was still there “going mad,” and when she went into the nurses’ station, the plaintiff was just a mess. It felt like an eternity in the nurses’ station. That was when “Dom’s racial and stuff just got really, really bad”. She distracted him for long enough for the plaintiff to get out, and she made him a Milo. She had to pretend to be strong to the resident.[179]
[179]T509
156 At that time, Dom was quite happy to sit down in the dining room and take the Milo, but he was still very angry and agitated. He went back to his room, and she talked to him at the doorway, because she felt unsafe. In the conversation while he was having Milo, Dom just kept going on about how he told the staff earlier that his bathroom was dirty, and no one had come to clean it. That was what his trigger was.[180]
[180]T510
157 She thought Neneth took Dom out when she was cleaning the bathroom, but then he came back in. It all happened so quickly. She just assumed Neneth took him out, because Neneth told her later that she took him out for some fresh air.[181]
[181]T511
158 She agreed her memory was wrong when told swipe cards were in operation that night and she did not need a key for the nurses’ station.[182]
[182]T519
159 She claimed her memory of the night was clear. The simple thing was that she –
“… went to work, he was going off. We cleaned his bathroom. He still went off. ... We were trapped in the nurses’ station for ‘X’ amount of time; it was very, very frightening, and he is very aggressive. And the long and short of it is, is that if the bathroom was clean to start with it wouldn’t have happened. It’s a trigger for aggression.”[183]
[183]T522
160 After she had settled Dom down, she did not see him anywhere else but in his room. She then went off to find the plaintiff and found her in the hairdresser’s room.[184] That was where they went back to, because all the documentation was there. She assumed if the plaintiff had finished medication in East, she would stop in the room and grab her documentation. “They were looking for … [the plaintiff] all over the place. … [they] were quite concerned about her.”[185]
[184]T525
[185]T526
161 Dom was still yelling and screaming from his room about 10.30pm. Probably just after 10.30pm, she was well and truly doing other work. She was not sure that she wrote her notes around 10.30pm rather than at 11.30pm. She would write the date, the time at which she wrote the note and then write the time of any incident in the note.[186]
[186]T528
162 She confirmed that when completing a progress note, she wrote on the next page and did not leave gaps. It had to be all filled in.[187] They were required to write on every resident, every shift, although told of the change of note making policy with Louise.[188]
[187]T530
[188]T533
163 When it was suggested she did not write a note, she said she knew she did:
“We have to, this is a very serious situation, it happened that evening and we had to write a note because there has to be documentation on what happened. ... Not everyone has to but it is our responsibility and it is our duty of care to write on the residents when something happens. It’s generally the person that’s with the resident ... And I was with that resident [as was the plaintiff].”[189]
“I wrote at least a page that evening …. Straight away … by the time everything settled down, around 11,11.30 by the time we wrote in the notes.”[190]
[189]T534
[190]T488
164 She was responsible for writing her own notes. She confirmed she was in the nurses’ station, and “went through what she went through, and wrote exactly what she wrote”. She wrote a report on what happened and had to write a report on cleaning the bathroom. She also put in an incident report form “because he was ... verbally aggressive towards us,” and that is policies and procedures, they have to write an incident report when an incident happens.[191] Her notes would have probably been half a page as she would have explained everything that she did.[192]
[191]T535
[192]T565 re-examination
165 Colin was incontinent, and most residents in that room are incontinent. He manually handled his own faeces. “You’ll often find it on the curtains and everything in there ... like they touch everything.”[193]
[193]T568
166 Ms Devereux did not come and see her that night. It would be unusual for the manager to turn up on nightshift unless an incident happened, and then they were called. There were many incidents. She did not go and speak with Ms Devereux because she was busy with other residents.[194]
[194]T536
167 She agreed it “was not all doom and gloom” working with the defendant, and she got some joy and satisfaction. She would not be caring for people in that condition if it was not. They are all high care people, with high care behaviours, incontinence, and there are a lot of other behaviours that make them high care.[195]
[195]T537
168 She always read the defendant’s policies, but “you can’t predict certain scenarios”. She knew about the back off policy, and to put herself in a safe spot if that failed, and if she still felt threatened to go and get a supervisor.[196]
[196]T539
169 On the night, the plaintiff had no choice but to go and do her further work, giving out the medication. She was shaking. They were both shaking. They had to carry on. She could not accept that the plaintiff had a choice.[197] While everyone has a choice to call the police, “when you’re in a situation like that sometimes ... you go blank”.[198]
[197]T540
[198]T540
170 Having been taken through copious progress notes, she agreed that Dom was generally quite pleasant to deal with, but he had occasional outbursts of anger. He was “more angry than pleasurable”.[199] When it was suggested he had a good relationship with his family, she explained “the daughter never visited him ’cause I know for a fact that he used to belt the shit out of her,” and the wife was actually quite frightened of him.[200] His wife felt she had to visit him.[201] Dom could walk without a frame but not very steadily, and he used it to steady himself, and was at risk of falling if he did not use it.[202]
[199]T555
[200]T555
[201]T568
[202]T556
171 She disagreed with Neneth’s evidence that the handover happened in the community room.[203] Neneth was not present with them in the nurses’ station. She did not see the plaintiff put her hand up to Dom and tell him to wait a minute. She disagreed that she had waved her hand at Dom in a sort of “go away” motion and told him to “fuck off”, and that he then became more agitated.[204]
[203]T556
[204]T557
172 Neneth was not in the nurses’ station to go out and calm Dom down. She did not know anything about Dom telling Neneth he wanted to make a complaint to Ms Devereux. She did not know that Neneth then walked with Dom to his room, calmed him down, cleaned his bathroom and stayed with him until he was quiet. It was wrong that Neneth did not find her and the plaintiff in the hairdressing room.[205]
[205]T560
173 She does not have a problem with Neneth. She is only at Court to tell what she knows, what happened. She did not have an argument with Neneth just before she left the facility. That has got nothing to do with the case. She then denied she was screaming at Neneth at work.[206]
[206]T560
174 She then said that she reported Neneth for resident’s abuse in the year before she left. She did not have an argument with her as such. She did not raise her voice and that was not the reason they were called into management.[207]
[207]T561
175 She denied her employment was terminated. She left due to health reasons. Her unfair dismissal claim was settled, and “that was all gagged”. That claim had nothing to do with Neneth. It was confidential.[208]
[208]T562
176 The elder abuse allegation occurred after she had returned from lengthy sick leave. Neneth had showered a new resident with cold water and screamed at Ms Wilson to get some pads for her.[209]
[209]T569
177 She had been unemployed since working for the defendant. She denied she is fairly acrimonious towards it. It is a really good company and she had dedicated a lot of years to it. She has been sick with bowel cancer and vaginal cancer for the last three years and is waiting for more surgery. The defendant was aware of this situation when she was dismissed.[210]
[210]T563
178 She speaks very occasionally with the plaintiff on the phone. The plaintiff occasionally rings her on her children’s birthdays. They just text to say Happy Easter and Christmas. The plaintiff texted before her son’s 21st. She had not really seen the plaintiff for five years, to be honest, and had not seen her in person.[211]
[211]T564
179 In the first five or six months after the plaintiff stopped working, she thought she and Neneth had visited her at home once, because she was very unwell. The plaintiff cried the whole time. They were very concerned about her because she was such a strong nurse.[212]
[212]T564
180 The plaintiff looked after her child maybe about three times so that she could do nightshift, but she could not recall when. It might have been before the incident, but then said it could have been afterwards. She thought her daughter was eight or nine at the time. She had not caught up with the plaintiff recently, and had not spoken to her or texted her in the weeks leading up to the case.[213]
[213]T565
181 In re-examination, Ms Wilson explained she confused Grant with Colin. Grant was moved “[b]ecause of his incontinence … you can’t quote me on that, ’cause the supervisors and management organise all that …”.[214]
[214]T566
182 Colin, who was there at time of incident, was incontinent. “Most residents in that room are incontinent.” He manually handled his own faeces. “You’ll often find it on the curtains and everything in there, you know, like they touch everything.”[215]
[215]T568
Leilani Polau-Thomas
183 Leilani currently works as a Division 2 Nurse at the defendant’s low care facility Gilgunya, in Coburg.[216]
[216]T573
184 At Gilgunya, there are buzzers in the residents’ rooms to alert staff if assistance is required. In 2018, all staff were issued personal duress alarms at the start of each shift which, when activated, alert all the pagers and the office but they do not identify the sender’s location.[217] She is familiar with DECT phones.[218]
[217]T574
[218]T574
185 It was her practice to make contact with the plaintiff when she was at work by text, to see if she wanted any food, just to let her know where the children were.[219]
[219]T571
186 Leilani texted the plaintiff on her mobile phone on the said date and got a response. She vaguely remembered the plaintiff saying that she is not good. She then rang her and the plaintiff answered her mobile.[220]
[220]T572
187 The plaintiff seemed very upset and teary, which was very out of character because “she normally holds it together really well”.[221] She could not really remember what the plaintiff said as to what happened, but asked her if she wanted her to come into her work, and the plaintiff said “No”. She asked if the plaintiff wanted to leave work and told her she did not need to put up with it.
[221]T572
188 The plaintiff played it down, just reassured her she had already called the manager and the manager was on the way, and Leilani thought she remembered telling the plaintiff to call the police. The conversation went for maybe a minute and a half or two minutes.[222]
[222]T572
189 Leilani has been in a situation at work where the police have been called. It is prolonged, it takes maybe a minimum of twenty minutes. There is not always a response.[223]
[223]T574
190 The plaintiff worked dayshift at Holloway – 7.00am to 3.00pm – and worked nightshift with the defendant.[224]
[224]T585
191 Leilani had a vague memory of the incident night and could remember some bits of it. She would generally text the plaintiff around 11.00pm, depending on what she was doing. She could not say what time that night she texted, but it took the plaintiff a long time to respond, and when she said she was not good, Leilani called her straight away. The plaintiff would normally just say “oh it’s good, darling, you have a good sleep”.[225]
[225]T589
192 Leilani asked the plaintiff whether she wanted her to come and told her no one should have to go to work to get abused. The plaintiff said, “It’s ok darling” and then said she had called the manager. Leilani said to her she should call the police because she knew the manager was a female – “like what’s the other female going to do?, like you’d be as defenceless as mum”.
193 The plaintiff responded, “it’s okay”. She sounded like she had it under control, or kind of reassured Leilani she would be okay. Otherwise Leilani probably could have called the police. The plaintiff always downplays things “so the kids do not worry, like even stuff with Dad”. She would say it is okay, just to be reassuring and comforting and protecting them from the truth.[226]
[226]T591
Expert evidence – Sue Bottrell
194 Ms Bottrell is a lawyer specialising in occupational health and safety.[227] She currently has her own consulting firm, SOS Safety and Legal. She has recently been made a Fellow of the Australian Institute of Safety, essentially a nomination for the most senior practitioners and professionals within the peak body for representatives within the safety industry.[228]
[227]T640
[228]T641
195 In her current company, Ms Bottrell provides expert safety assistance to organisations to understand their health and safety obligations. She works with them on strategies to ensure compliance with the legislation. She has two hats – one as a qualified safety professional and also a qualified practising lawyer.[229]
[229]T641
196 While not given a set of assumed facts, she was provided with all relevant Court documents, claim forms, incident records, documents relating to the plaintiff’s work performance and courses undertaken by her and the defendant’s OH&S, Aggression and Violence and Behaviour Management policies.
197 She was also given a summary of incidents involving resident Dom, derived from his progress notes in which she identified 76 incidents.[230] These notes also confirmed his behaviour was extreme on many occasions, including using his walking frame as a weapon, threatening to kill staff, following staff while threatening them and continuing with the behaviour after staff had implemented defusing strategies.
[230]T643
198 Her recollection was that there was an incident involving a resident who became significantly agitated and aggressive in regard to the soiling of the toilet attached to his room.[231]
[231]T642
199 There is an expected standard of conduct under applicable risk management process and theory to comply with the Occupational Health and Safety Act and Regulations. It requires that employers eliminate risk to health and safety in the first instance, so far as is reasonably practicable.
200 In providing her opinion, she also referred to the Body of Knowledge which had been developed by the OH&S profession and various regulators in relation to what would be expected of an organisation in responding to risks around occupational violence (“OV”).[232] It is prepared by the Australian Institute of Health and Safety and internationally recognised as the minimum requirements to be understood by health and safety professionals. It is available to employers to inform their management of risk. It has a particular chapter in relation to management of aggression and OV.[233]
[232]T644-5
[233]T645
201 Having reviewed the Wintringham Occupational Health and Safety Policy and Aggression and Violence Policy 2012, and the specific strategies contained therein, she concluded that a review of the OH&S guidelines supplied to her confirms a complex range of processes implemented to address the incidence of OV. Overall, the procedures rely on identification of triggers of OV and describe behaviour management strategies to respond to it when it occurs, and significantly places the burden of managing risks on the employee.[234]
[234]T647
202 In her report she referred to a number of studies.
203 In the context of aged care and the occurrence of workplace violence, it has been observed that workplace violence has been contextualised as “an occupational reality … a permissible, systemic work-related risk which was deflecting attention away from possibly negligent working environments and practices”.[235]
[235]Perrone, 1999, pages 2-3
204 Significant research attention is focused on workplace violence in the aged care sector in Australia. It was found that 67 per cent of a sample of public health employees had been verbally abused, 10.5 per cent had been bullied and 12 per cent had been assaulted in a twelve-month period.[236]
[236]Mayhew & Chappell, 2005
205 She noted that OV in the workplace may result in serious negative outcomes for workers, including fatality, physical injury, depression and or anxiety, decreased self-esteem, guilt, social withdrawal and Post-Traumatic Stress Disorder (“PTSD”).
206 There has been much recent work in improving risk management systems in identified high risk injury, in particular, the healthcare and services industries.[237] These industries are within the high risk category.[238] The current recognised approach to manage and prevent OV include, in order of effectiveness:
[237]See for example ILO, 2003: WorkSafe 2009
[238]T647
(a) physical workplace design, including appropriate egress, an escape route, visibility, a pleasant environment, presence of surveillance … the availability of safe rooms;
(b) communication/alarm systems and ensuring that devices are accessible and monitored for activation and systems are tested and maintained, utilisation of system for communication/flagging client history of aggression or violence, presence of reporting systems and a system for handover and information exchange with staff;
(c) work practises including ensuring management of wait times for handling complaints;
(d) staffing levels and worker skill mix ensuring adequate staffing in high risk areas, adequate training in defusing conflict or responding to aggression;
(e) policies and procedures for reporting of aggression and violence; and
(f) instruction competency-based training and supervision.[239]
[239]T649
207 These factors come from the Body of Knowledge which discusses management of OV in the workplace, although she had not noted that source in her report. It is material also frequently referenced by WorkSafe Victoria.
208 It was critical to identify triggers and eliminate them as far as practicable.[240]
[240]T649
209 After reviewing the material provided, she concluded that the risk control measures implemented by the defendant to manage patient violence do not reflect accepted industry standards, do not provide for the implementation of high order controls, and rely upon lower order administrative controls such as training and behaviour management.[241]
[241]T649
210 In her view, the health and safety guidelines in place as per the defendant’s Aggression and Violence policies were not sufficient to protect the plaintiff’s health and safety in relation to security incidents, including aggressive and abusive residents, because those policies and procedures relied primarily on behaviour management and communication to defuse the situation.[242]
[242]T650
211 Having reviewed Dom’s notes, she thought that when applying the test of reasonable practicability, the risk of injury was high and there are known risk management strategies at the higher end of the hierarchy of control which do not require staff to interact with abusive clients – including installing duress alarms, engaging security and providing safe rooms and exit pathways.[243]
[243]T651
212 The strategies detailed in the defendant’s OH&S manual were at the lower end of the hierarchy control, and required staff to interact with violent residents and use administrative controls, behaviour management and communication to respond to an extreme risk to staff of serious physical and psychological harm.
991 As I commented during cross-examination, in my view, the plaintiff did not have any significant psychiatric problems before the incident.[802]
[802]T213
992 While there were a number of references in the Scott Street notes to stress and depression during 2011 due to family and work matters, there were fewer references in 2012 and scant reference in 2013.[803]
[803]T208; two references in July 2013 at Sunshine
993 Dr Timmins was advised of the 2013 attendances at Sunshine and concluded there was no psychiatric injury pre incident. In any event, there was very limited counselling, as Dr Gurusinghe confirmed, and recovery by 2012. I disagree with Dr Adlard’s view as to the significance of these pre-incident entries.
994 I accept that the plaintiff’s problems before the incident related to understandable family stress, supporting three children, working full time, while having significant issues with her former husband. Despite these stressors, she was able to work 60 hours a week and look after her family.
995 The plaintiff is clearly a stoic who had done a very good job of finishing nursing studies at a later age, caring for three older teenage children and working full time in two jobs as at the time of the incident.
996 While there was some complaint of pain and treatment from 2011, there is no suggestion, because of any problem with her spine or shoulder or any other physical condition, that the plaintiff was not coping with her heavy workload and active life as at the said date.
997 The situation changed dramatically after the incident. As Dr Tagkalidis described, the resultant injury caused a very substantial detrimental effect on the plaintiff’s functioning and emotional wellbeing. She went from working 60 hours per week with an active social life to just staying at home. All doctors agree that because of her psychiatric injury, she has lost her ability to work as a nurse, a career she loved.
998 The plaintiff was clearly very ill in the months after the incident, as her treaters confirmed, being largely housebound and reliant on increasingly heavier antidepressant medication. A visit to the workplace some months after the incident only worsened this situation.
999 The bikie incident may have caused the plaintiff a setback in early 2016, as Dr Timmins opined, but it was not mentioned by the plaintiff to any of her treaters at that time to whom she continued to report significant ongoing PTSD and depressive symptoms related to the incident which continue to the present day.
1000 Mr Centofanti was aware of the bikie incident but attached no particular significance to it.
1001 It is not in dispute that the plaintiff continues to suffer a major depressive condition and PTSD related to the incident. Although Dr Tagkalidis thought her PSTD had partially abated in mid 2019, he did not explain on what basis. In any event, he then thought the plaintiff was still totally unfit for work on psychiatric grounds and a moderate to severe Major Depressive Disorder persisted.
1002 While Dr Adlard had some concerns as to the plaintiff’s veracity, he was prepared to concede that in this frightening incident, she suffered a psychiatric condition which continues to this day and renders her incapable of work.
1003 As a result of her psychiatric condition, the plaintiff is depressed. Her psychiatric symptoms result in major functional limitations, as Dr Tagkalidis described. She lacks motivation to engage in any social activities – she has become socially withdrawn. Her involvement in the Tuvalu community is almost non-existent. She is very uncomfortable leaving the house and is still prone to panic attacks, as Mr Centofanti confirmed when she attended the supermarket last year. She is uncomfortable with strangers, and even socialising with family is limited, being unable to stay for events like Leilani’s last birthday. Outings are largely limited to medical appointments and going grocery shopping with her husband.
1004 The plaintiff is anxious while at home and hypervigilant, as Leilani confirmed. She no longer enjoys music and reading. Activities around the house are largely limited by lack of motivation, as well as physical restrictions. Self-care such as showering is an effort. Her marriage had been negatively affected in various ways, including intimacy.
1005 The plaintiff has undergone extensive psychiatric treatment with a number of practitioners with only limited improvement, as Mr Centofanti explained, with her condition still at the low end of the hierarchy. Treating psychiatrist since 2015, Dr Akinbiyi, described her poor response to treatment with the failed trial of several anti-depressants and augmentation strategies.
1006 The consensus of psychiatric opinion is the plaintiff’s prognosis is poor.
1007 An award of damages of $260,000 is appropriate for pain and suffering, taking into account the consequences of the plaintiff’s psychiatric injury, disregarding any issues relating to her physical problems.
Economic loss damages
1008 The plaintiff seeks damages for loss of past earning capacity from 2 March 2015. The parties agreed, subject to my findings concerning the plaintiff’s capacity to work, she was earning the relatively high figure of $2,381 net per week at the time of injury. There was no breakdown of this figure into a weekly or hourly rate. It is now 292 weeks since she ceased work and the past loss claimed totals – $695,252.
1009 The plaintiff also claims future economic loss. The present wage is agreed at $2,680 net per week. Again, there was no breakdown or explanation of this figure. The 6 per cent multiplier to age sixty-seven (eleven years) is 423.8 and to age seventy is 475.7. The result in raw figures of $1,135,784 (sixty-seven) or $1,274,876.
Legal principles
1010 The principles to be applied in assessing both the past and future loss were set out by J Forrest J in Acir v Frosster:[804]
[804][2009] VSC 454 at paragraphs [262]-[273]
“[262] Mr Acir is entitled to be compensated for loss of earning capacity caused by Frosster’s negligent acts … in determining that amount (in both assessing loss from the date of injury to the date of trial and into the future), a Court is required to take into account other events unrelated to the subject injuries which would have, regardless of the subject injuries, limited or eliminated the capacity of Mr Acir to earn income.
[263] The approach to be taken to this issue is that stated by the High Court in Malec v Hutton:
‘When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.’ (Citations omitted).
[264] Subsequently, in Poseidon Ltd & Sellars v Adelaide Petroleum NL, the High Court said:
‘In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts – what has happened – and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.’
[265] In Seltsam Pty Ltd v Ghaleb, Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.
[266] One other issue of principle arises, namely, how to treat the independent supervening illness in the form of Mr Acir’s cirrhosis of the liver. In Jobling v Associated Dairies Limited, Lord Bridge said:
‘But when the supervening illness or injury which is the independent cause of loss of earning capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished.’
[267] In Australia, the application of that principle is not doubted. In D & M [scil DNM] Mining Pty Ltd v Barwick, Giles JA (with whom Santow JA and Windeyer J agreed) said:
‘Since the Court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of a lost earning capacity and so in arriving at the plaintiff’s damages.’”
1011 In Smith v Gellinbrand Support Services Inc,[805] the Court referred to further comments of Ipp JA in Seltsam Pty Ltd v Ghaleb:[806]
[805](2013) 42 VR 197; [2013] VSCA 368 at paragraph [72]
[806][2005] NSWCA 208
“What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.”
The Defendant’s submissions
1012 Since at least March 2016,[807] the plaintiff has had no capacity for work by reason of her right shoulder, right elbow, neck and lower back conditions according to her treating practitioners. Submissions were made detailing these comorbidities.
[807]PCB 188 certificates
1013 The plaintiff independently lost her work capacity by reason of these unrelated physical conditions, and that must be taken into account in assessing her loss by reason of her psychiatric injury. Consequently, her damages for past economic loss should cease as at March 2016 at the latest.
1014 No allowance should be made beyond that date, as other events unrelated to the subject injuries would have, regardless of the subject injuries, limited or eliminated her capacity to earn income.[808]
[808]Acir (supra)
1015 Further, applying the approach in Malec v JC Hutton Pty Ltd,[809] it ought to be determined on the balance of probabilities that this total incapacity for work due to the unrelated physical conditions occurred at the latest in March 2016 and the occurrence of this fact ought to be treated as certain.
[809](1990) 169 CLR 638
1016 The Court ought then to apply the principle originally stated by Lord Bridge in Jobling v Associated Dairies Ltd[810] as approved in DNM Mining Pty Ltd v Barwick[811] and Acir.[812]
[810][1982] AC 794
[811][2004] NSWCA 137
[812](supra) at paragraphs [269]-[271]
1017 The defendant further submitted that the Malec[813] principles must be applied to the period between March 2015 and March 2016 to account for the possibility that the plaintiff might not have worked throughout that period due to her physical conditions, or might have worked reduced hours for some or all of that period due to her physical conditions. Therefore, a discount for vicissitudes ought to be applied.[814]
[813]Supra
[814]Acir (supra) at paragraph [273]
1018 The plaintiff has not adduced any evidence to support a finding that she is likely to recover from her physical conditions, or indeed that she might do so. The evidence overwhelmingly supports the contention that her physical conditions continue to incapacitate her for all work. There is therefore no basis to award the plaintiff any future loss of earning capacity damages as her capacity to work in the future has, on the evidence, been totally and permanently destroyed due to her unrelated physical conditions.
The Plaintiff’s submissions
1019 But for her psychological injury, the plaintiff would have either continued working despite her pain and problems in a physical nursing role; alternatively, she would have worked in a less physical nursing role.[815]
[815]T1284
1020 The plaintiff swears she would have gone back to work regardless of pain. She attributes problems with respect to work including her nerves.[816] She says that she was not working because of a PTSD.[817]
[816]T351
[817]T352
1021 The plaintiff clearly was a hard worker who was totally focused on running her household and ensuring her children had what they needed despite being a single mother. She also says that she loved her work and it was expressly put by the defendant that she is extremely good at her role and hardworking. She was a stoic, hardworking individual who gave evidence that she would have worked until seventy years of age, as had her aunt.[818]
[818]T144
1022 Prior to the incident, she could cope with the pain, but she was unable to cope thereafter, including because of the reality that she was less physical due to her incapacity arising from her PTSD. Her treating general practitioner’s notes seem to indicate that the plaintiff’s inability to cope with the physical pain started to occur at a point in time after her psychological injury. She has given evidence about her physical injury, and accepted that she continues with pain and problems, although she derived benefits from the March 2019 injection.
1023 Further, the plaintiff gave unchallenged evidence that she did do a non-physical nursing role, in particular whilst working for Holloway. She described dealing with the paperwork in the office with no physical component to her role, and that such jobs are available in the nursing industry.[819] Ms Devereux confirmed wage rates for a number of administrative roles which she agreed were not physically demanding and for which the plaintiff would be suitable.[820]
[819]T146
[820]T1093
1024 The defendant has failed to satisfy its evidentiary onus in relation to the plaintiff being incapacitated for work. Accordingly, any deduction ought occur on the basis of a modest deduction for vicissitudes.
1025 Prima facie, due to the incident brought about by the defendant’s negligence which was a cause of injury and loss and damage, the plaintiff is totally incapacitated for work, which loss should be assessed to age seventy, with only a modest allowance for vicissitudes. If there is any deduction to be made from the damages award for an amount due to the plaintiff’s pre-existing physical condition which is found to continue to trouble her, then there is an evidential burden on the defendant.
1026 There is no evidence first of all that the plaintiff would not have worked until normal retirement age. Further, the defendant needs to overcome an evidentiary onus in relation to when the plaintiff might have ceased work on the basis of her unrelated physical conditions.
1027 In this case, the plaintiff has a made a prima facie case that incapacity has resulted from the defendant’s negligence. Thus, the onus shifts to it to adduce evidence that her incapacity is wholly or partly the result of some pre-existing condition or that incapacity would in any event have resulted from the pre-existing physical conditions.[821]
[821]Watts v Rake (1960) 108 CLR 158; See also Purkess v Crittenden (1965) 114 CLR 164
1028 Dr Freilich’s January 2017 report does not satisfy any evidential onus in relation to the likely incapacitating effects of the plaintiff’s physical condition.[822] Mr Etherington, who reported later that year, noted that after the C7 nerve root block, the plaintiff had no pain in her forearm or hand. At that stage, the main concern was the pain in the right shoulder. He suggested a form for a repeat C7 nerve root block should the neck and radicular symptoms recur.
[822]T1285
1029 While in February 2019, Dr Sullivan refers to neck and right shoulder pain continuing, by July that year, he considered that the C6 nerve root injection is worth repeating and further investigations including a pain program are indicated.
1030 There is no up-to-date evidence from Dr Sullivan and while the plaintiff agrees she continues with pain, there is insufficient evidence for the Court to hold that the present condition would likely have taken her out of the workforce totally. Further, she says she derived great benefit from the right shoulder injection in March 2019 – a situation supported by only three recorded complaints of shoulder pain to her general practitioner: 19 September 2018, 14 January 2019 and 24 April 2020.
1031 Dr Pham also provides support in respect of the contribution of the psychiatric injury on the plaintiff’s perception of pain (although she conceded it was a difficult question to answer).
Findings
1032 The consensus of medical opinion is that the plaintiff does not have a capacity for employment as a result of her incident-related psychiatric condition, summed up succinctly by Dr Tagkalidis last year.[823]
[823]Paragraph 899 of my judgment
1033 However, when considering her economic loss claim, I am required to take into account other events unrelated to this condition which would have, regardless thereof, limited or eliminated her capacity to earn income.[824]
[824]Acir (supra)
1034 While I found the plaintiff was somewhat of a stoic, working with some pain before the incident, in my view, she downplayed the extent of her significant physical problems thereafter. She did, however, acknowledge some increase in her pain since ceasing work, suggesting this might be due to not having the distraction for working. While it is conceivable that the experience of pain could be affected by mental health, as counsel for the defendant submitted, none of the medical evidence before the Court supports that contention, and it cannot explain the significant organic physical deterioration.
1035 Although Dr Pham thought the plaintiff continues to suffer PTSD and Major Depressive Disorder, she described in detail the incapacitating nature of the plaintiff’s shoulder and spinal pain, her need for increasingly stronger painkilling medication and the lack of success of treatment modalities.[825]
[825]T1235
1036 Dr Pham was clear in her view that the plaintiff has no work capacity by reason of her physical injuries and that those injuries, in particular her neck, have not improved, and indeed worsened since 2015.
1037 In light of the treating doctor’s evidence and other evidence as to the plaintiff’s significant physical conditions relied on by the defendant, it is not simply a matter of a making a small deduction for vicissitudes, as submitted by counsel for the plaintiff. The totality of the evidence as to the plaintiff’s current physical condition and its impact on her work capacity goes far beyond the outdated views of Dr Freilich and Mr Etherington, upon whom the plaintiff relies.
1038 The plaintiff’s right shoulder and spinal conditions cause her significant pain and restriction and have required a wide range of treatments, including ongoing very heavy painkilling medication.
1039 Following a work injury in 2013, the plaintiff has had increasing problems with her right shoulder, particularly from January 2015, when she required the first of many ultrasound-guided steroid injections and was prescribed Panadeine Forte. Tramal was first prescribed in November 2015 for back pain, and Lyrica later that year for right upper limb pain.
1040 In March 2016, the plaintiff submitted a WorkCover claim for injuries to her neck, right shoulder and right elbow caused by heavy physical fast-paced work as a nurse. That application was supported by certification from Dr Conejera that the plaintiff was totally unfit for work as a result of her spinal condition.
1041 As of March 2016, the plaintiff was taking Lyrica, Norgesic and up to four Panadeine Forte a day for physical pain.[826] By September 2016, she was reporting to Dr Pham that Panadeine Forte and Lyrica were not helping her pain. In February 2017, the Lyrica dosage was doubled.
[826]T332
1042 The plaintiff told Dr Gurusinghe that her right shoulder pain was getting worse in May 2017.[827] The following month, Dr Conejera was granted permission to prescribe Schedule 8 Palexia because of “‘unresponsive right shoulder and neck pain (sever foraminal stenosis on MRI)”.
[827]T343
1043 When the plaintiff consulted Mr Etherington in October 2017, he reported she described her main concern as pain around her right shoulder. He suggested further imaging be undertaken, followed by a referral to a shoulder specialist. The November 2017 MRI scan revealed a partial thickness tear involving the anterior supraspinatus and severe degenerative supraspinatus tendon and subacromial AC bursa.
1044 In February 2019, Dr Sullivan, the plaintiff’s treating pain specialist, noted that her right shoulder pain had continued unabated. The plaintiff asked her general practitioner for a higher Norspan patch two months later.
1045 The plaintiff has had ten ultrasound-guided injections to her right shoulder.[828] She underwent hydrodilatations to that shoulder in 2018 and most recently in 2019, following which she said she had six months’ pain relief.
[828]T349
1046 There is no report from Mr Chehata, the shoulder surgeon who arranged this procedure.
1047 There is no up-to-date report from pain management specialist, Dr Sullivan, as to the plaintiff’s progress post this procedure, having seen her in May this year because of worsening pain. In February 2019, he had reported that her chronic neck and shoulder pain continues unabated and that she remained in a situation where she could not return to the workforce. She continued to be on opioid-based medications. He then stated: “I believe her work restrictions are largely related to neck and shoulder.”
1048 While there may be few references in Dr Pham’s notes to shoulder complaints since 2018, as recently as April this year, the doctor noted “chronic pain shoulders” and “hurting everywhere” in February 2020. During the hearing, the plaintiff described how her shoulder now “kills” her every day.[829] She described her pain as still the same as in February 2019.[830] She agreed that since April 2016, right arm movements have been restricted.
[829]T145
[830]T347
1049 The plaintiff also alleges she experienced neck pain in the work incident in April 2013. In early 2016, she underwent imaging of her cervical spine and was noted to be having a lot of pain in her neck.[831] Her pain was said to be preventing her going out and socialising. She was prescribed Lyrica and Norgesic.
[831]Dr Conejera - February 2016
1050 In March 2016, Dr Conejera certified the plaintiff unfit for all work by reason of her neck condition. The plaintiff agreed that condition had not improved in any way since that time.
1051 In January 2017, the plaintiff was referred to neurologist, Dr Freilich, who suggested a cervical MRI scan. In her referral letter to Mr Etherington in May that year, Dr Conejera described the plaintiff suffering neuropathic pain in her right upper limb, paraesthesia and severe pain in the neck. She also noted the plaintiff was very worried about her neck pain as at June 2017.[832]
[832]T335
1052 The following month, the plaintiff had a C6 nerve root injection performed by Dr Etherington, who carried out a further injection at C7 in September 2017 and at that stage, planned on a further C7 injection. Dr Sullivan suggested a further C6 injection in July last year.
1053 In May 2017, the clinical records contain complaints of back pain. In January 2020, the plaintiff had a lumbar MRI scan which revealed some nerve root compression at L4‑5. She had a CT-guided steroid injection at the L4‑5 nerve root in March/April 2020, which had some effect.[833] She described her left hip as the site of her pain.
[833]T360
1054 Leilani’s evidence was that the plaintiff’s physical conditions were significant and had not improved. The plaintiff’s husband gave limited similar evidence.
1055 I consider had the defendant’s negligent act not occurred, the plaintiff’s non-compensable physical conditions would have significantly reduced her ability to work in a hands-on nursing role.
1056 In my view, by early March 2017, two years after the incident, her ability to do unrestricted nursing work would have been eliminated by these physical conditions. By that stage, she was about to undergo nerve root injections in her cervical spine and her need for much stronger painkilling medication was becoming apparent.
1057 For that period, I therefore allow the sum claimed of $2,381 net per week for two years. This totals $123,565 x 52 x 2 = $247,624.
1058 Beyond that date, the plaintiff could not undertake normal nursing duties because of increasing and chronic right shoulder and spinal pain. Those conditions have had a major impact on her life, necessitating a wide range of treatment modalities, including many right shoulder injections, a number of cervical nerve blocks, ongoing specialist pain management with Dr Sullivan and most recently, a lumbar injection. She has also required strong painkilling medication, including Palexia and currently, Norspan patches
1059 I do not accept the defendant’s submission that the plaintiff will not suffer a loss of earning capacity beyond March 2016 at the latest. On the other hand, I do not accept the plaintiff’s submission that an allowance should be made for the past loss with only a small reduction for vicissitudes. I was not assisted by either counsel as to any variation on these two scenarios.
1060 From March 2017, I consider the plaintiff would have retained the capacity to do some administrative nursing work on a part-time basis of the type described by Ms Devereux or the work she did at Holloway, even with her pain and need for strong medication, given her work ethic.
1061 Doing the best I can, the plaintiff would have been able to work for about 20 hours per week in an administrative role. That is roughly a third of the hours she was working at the said date. On that basis, I allow $700 per week from 3 March 2017 to the present date – 187.57 weeks at $700 = $131,299.
1062 However, over time, the plaintiff’s condition has continued to worsen. In June this year, her lumbar condition also required significant treatment in the form of a lumbar injection. She continues in pain management with Dr Sullivan. Her strong medication continues. She has widespread pain and requires ongoing Norspan and Panadeine Forte.
1063 In terms of the future, evaluating the possibilities as best I can on the available evidence,[834] the plaintiff retains the capacity for very limited part-time administrative work and I allow $100,000 for that future loss.
[834]Smith v Gellibrand Support Services Inc (supra)
1064 Accordingly, I allow the following:
Pain and Suffering Damages $260,000.00
Economic Loss:
Past
(2.3.15 – 2.3.17 (two years’ full loss $247,624) plus
3.3.17 – 5.10.20 (187.57 x $700 = $131,299) $378,923,00
Future $100,000.00
__________
TOTAL:$738,923.00
==========
Appendices
Appendix 1–Wintringham Aged Care OH&S Reporting Investigation
Appendix 2–The plaintiff’s Incident Report
Appendix 3–The Register of Injuries
Appendix 4–Mr Domenico Fiorito’s Progress Notes
Appendix 5–Map of Facility
Appendix 1 - Wintringham Aged Care OH&S Reporting and Investigation
Appendix 2 - The Plaintiff’s Incident Reporting
Appendix 3 - Register of Injuries
Appendix 4 - Mr Domenco Fiorito’s Progress notes
Appendix 5 - Map of Facility
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