Reader v Wyndham Lodge Nursing Home Inc - [1997] IRCA 91

DECISION NO:91/97

CATCHWORDS

INDUSTRIAL RELATIONS - Matter remitted to single judge for determination of issue of fact - whether valid reason for employee’s dismissal - remedy for breach of s 170DC Workplace Relations Act 1996 (Cth) - admission of prior consistent statement of witness - Admission of tendency or propensity evidence.

Evidence Act 1995 (Cth) s 55, 60, 64, 97, 100, 106(1)(e)
Workplace Relations Act 1996 (Cth) s 170EA, 170DC

DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597
Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Briginshaw v Briginshaw (1938) 60 CLR 336
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50
Burzain v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, 13 December 1996)

No. VI 0837R of 1994

CECILE READER v WYNDHAM LODGE NURSING HOME INC

MOORE J
MELBOURNE

26 MARCH 1997

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. VI 0837R of 1994
  )
VICTORIA DISTRICT REGISTRY       )

BETWEEN: CECILE READER

Applicant

AND: WYNDHAM LODGE NURSING HOME INC

Respondent

JUDGE: Moore J

PLACE: Melbourne

DATE: 26 March 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

The Respondent pay the applicant $4,000.00 compensation.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. VI 0837R of 1994
  )
VICTORIA DISTRICT REGISTRY       )

BETWEEN: CECILE READER

Applicant

AND: WYNDHAM LODGE NURSING HOME INC

Respondent

JUDGE: Moore J

PLACE: Melbourne

DATE: 26 March 1997

REASONS FOR JUDGMENT

This judgment deals with residual issues raised in an application by Mrs Cecile Ann Reader under s 170EA of what is now entitled the Workplace Relations Act 1996 ("the Act"), flowing from the termination of her employment by Wyndham Lodge Nursing Home Inc ("the employer") on 13 July 1994. Mrs Reader is a Registered Nurse (Division 1). The employer operates a nursing home for elderly and infirm residents called Wyndham Lodge.

The application was filed on 27 June 1994 and heard by a Judicial Registrar on 7, 8 and 9 December 1994. The Judicial Registrar dismissed the application. A review of the Judicial Registrar’s determination was sought under s 377 of the Act. The review was undertaken by Marshall J on 29 and 30 August 1995. Judgment was delivered by his Honour on 8 September 1995: see (1995) 64 IR 83, and orders were made on that date. On 4 October 1995, the orders of 8 September 1995 were varied. The final orders were, for relevant purposes:

The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 January 1995 is set aside.

It is declared that the termination of the employment of the applicant contravened ss 170DC and DE of the Act.

The respondent shall on Monday 9 October 1995 appoint Cecile Reader to the position in which she was employed immediately before the termination on a shift commencing on 9 October 1995.

The employment of Cecile Reader is deemed to have been continued for all purposes from 13 June 1994 to the date the final order is made in this matter.

The matter is adjourned to the directions hearing list on 16 October 1995 to enable the parties to calculate, in accordance with the reasons for judgment, the amount of remuneration lost by the applicant because of the termination of her employment and, specifically, the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate."

On 12 October 1995, Marshall J made an additional order in the following terms:

That the Respondent pay the Applicant pursuant to Order 5 of Marshall J dated 8 September 1995 $24,152.40 gross less PAYE taxation of $3,871.31 being $20,281.09 nett."

The employer successfully appealed against the judgment of Marshall J. On 22 November 1995, the appeal was heard by a Full Court. Judgment was given by the Full Court on 15 April 1996: see (1996) 65 IR 253, and orders were made in the following terms:

The appeal be allowed;

Orders 2 to 5 made by Marshall J on 8 September 1995 and the order made by Marshall J on 12 October 1995 be set aside;

It be declared that the termination by Wyndham Lodge Nursing Home Inc of the employment of Cecile Ann Reader contravened s. 170DC of the Industrial Relations Act 1998.

The following issues in the review of the exercise of power by Judicial Registrar Tomlinson on 13 January 1995 be remitted for hearing by a judge other than the trial judge, namely:
(a)whether Cecile Anne Reader assaulted Mrs Bullard on 12 June 1994; and
(b)the appropriate remedy for the contravention of s. 170DC and s 170DE (if this be established) of the Industrial Relations Act 1988."

The assault the Full Court remitted for consideration by a single judge was described by counsel for the employer in these proceedings as an incident occurring at breakfast time on 12 June 1994. The employer contends Mrs Reader slapped a resident of Wyndham Lodge, Mrs Vera Bullard, across the arm with an open hand, punched her in the back with a closed fist, grabbed Mrs Bullard in a bear-hug, dragged her down a corridor into her room and threw her into a chair.

I should at this point indicate that while I read the reasons for judgment of the Full Court in their entirety shortly after judgment was given, and probably read the reasons for judgment of Marshall J shortly after judgment was given, I have not reread either before completing these reasons, with one qualification, in so far as they discuss, in detail, the facts. The qualification is that it was necessary for me to review the findings made by Marshall J concerning the contravention of s 170DC: see (1995) 64 IR 83 at 90-92.

Order 4 of the Full Court’s orders identifies my task though its terms are not entirely clear. The order is in two paragraphs. Taking the first paragraph literally, the first task is to determine whether, as a matter of fact, Mrs Reader assaulted Mrs Bullard. The second paragraph requires consideration of the appropriate remedy for the contravention of, inter alia, "s 170DE (if this be established)". This formulation suggests the first paragraph was intended to raise not only consideration of the factual issue of whether there was an assault but also the related question of whether the conduct constituted by that assault provided a valid reason for the termination of Mrs Reader’s employment.

However, the reason why the order was in those terms was explained by the Full Court in the following passage from their reasons for judgment at (1996) 65 IR 253 at 273:

"The parties agree that, if it is found that the respondent assaulted Mrs Bullard, it should be determined that there was a valid reason for the termination (s 170DE(1)) and the termination was not harsh, unjust or unreasonable (s 170DE(2)). These positions must govern the rehearing."

I asked the parties to identify the terms of the agreement. They were unable to do so with any precision and, as far as counsel appearing in the appeal could recall, no agreement was reached in the appeal independently of any agreement that may have been evident from the proceedings before Marshall J. I have been provided with extracts of the transcript of the proceedings before Marshall J which is thought to reflect the agreement, though there was an issue about which pages of transcript were relevant. It does not address the potential difficulty I confront. That is, that the "assault" is constituted by five acts of Mrs Reader. Three are part of the same continuum of conduct, the other two are not. Some aspects of the assault may be proved, others may not. Indeed, while counsel for Mrs Reader conceded in these proceedings that two acts, if proved, would constitute conduct which would establish a valid reason for the purposes of s 170DE(1), he made no such concession in relation to the others. However having regard to the conclusion I have reached on the evidence, this potential difficulty is of no practical significance.

The Evidence

The employer called evidence first. The first witness was Mrs Michelle Sweeting. Notwithstanding that she had given evidence before the Judicial Registrar, her evidence was given again orally and generally the transcript of earlier evidence was used only for cross-examination. This was also the case for most other witnesses called in these proceedings.

Mrs Sweeting’s evidence-in-chief was to the following effect. She had been employed at Wyndham Lodge for approximately three years before 12 June 1994 but she resigned the day she was rostered back on with Mrs Reader. She left because of the incident, because she had lost faith in nursing and: "a bit of humanity I lost faith in". She is presently employed as a medical receptionist. Prior to commencing work at Wyndham Lodge she had been employed at Western General Hospital, Footscray while undertaking nursing training. She had worked there for approximately six years. She then worked for a radiologist and then left the paid work force to have children. Her duties at Wyndham Lodge, as a State Enrolled Nurse, were general nursing duties and assisting the residents with their daily living tasks. I should here note that a State Enrolled Nurse undertakes one year's training as does a Registered Nurse (Division 2). A Registered Nurse (Division 1) undertakes three years training.

Some of the residents at Wyndham Lodge suffered from dementia. Mrs Bullard did. She had tendencies to be both verbally and physically aggressive but at the same time was, in Mrs Sweeting’s words, a very lovely, lovely lady who had a lot of compassion for people. She had been aggressive towards Mrs Sweeting who could recall one occasion when Mrs Bullard had grabbed a hose while she was being showered and wet Mrs Sweeting. The residents had programs to help with their care called "nursing plans". An aspect of the plan for Mrs Bullard was to validate what she was saying by accepting as real what might be manifestly unreal. Also used was diversion therapy where music was played and her attention diverted. They also used aroma therapy involving the use of oils and massage.

It is convenient to describe at this point and in general terms what, in my opinion, emerges from the evidence as a whole about the layout of the relevant parts of Wyndham Lodge. Of central importance in these proceedings is an area known as the lounge or day room. It is a large area formed by three walls constituting a large right-angular “U”. The following description is from the perspective of someone in the day room at the bottom or base of the U facing its open end. This is also the perspective I will use elsewhere in these reasons, unless I or the context indicates otherwise, in describing the spatial relationship of a thing or place to another thing or place. The wall which is the base is mainly windows. At the open end there are corridors to the left and the right which are opposite each other. The corridor to the left leads to a reception area ("the reception corridor"). The corridor to the right leads, for present purposes, to the room that was occupied by Mrs Bullard ("the Bullard corridor").

Immediately above the open end of the U, and approximately in line with the farther walls of the reception and Bullard corridors, is a counter with a solid face. It constitutes the front and part of the left hand side of the perimeter of an area described as a nurses’ station. The counter, moving from right to left, commences in a straight line, as a notional continuation of the farther wall of the Bullard corridor, bends away at an angle of approximately 45 degrees and bends away again at a further angle of approximately 45 degrees. The entire station is an area surrounded by the counter at the front and on part of the left side and by a low partition no more than 1.5 metres high on the remainder of the left side and the rear. On the left side of the nurses’ station, that is, the side closer to the reception corridor, there is a swinging door giving access to the nurses’ station. There is also a door constructed in the same way in the counter itself at the front and at the extreme right.

Moving from the top of the U and beyond the nurses’ station, there is another smaller lounge area and beyond that a large door leading to the west wing of the nursing home. The west wing is also known as the green area. Direct access to the west wing from the day room is via a passage or walkway to the immediate left of the left side of the nurses’ station. To the left of that passage or walkway is an internal wall which meets, at right angles, the farther wall defining the reception corridor. The right side of the nurses’ station is constituted by an internal wall of the building with a door in it. The wall meets the farther wall of the Bullard corridor at right angles. The door leads into a medication room in which drugs are stored.

Mrs Sweeting gave evidence about an incident she said occurred on a Sunday in the June long weekend of 1994. She was working that day and had commenced at 7.00 am for a shift that concluded at 1.00 pm. Mrs Sweeting said that at breakfast time, Mrs Reader was at the nurses’ station distributing medications from a drug trolley. Mrs Bullard came past a breakfast trolley to the drug trolley. She had her night dress on but only one of her arms was in a sleeve of her dressing gown. Mrs Reader approached her to try to put the other arm in the dressing gown. Mrs Bullard gestured to her to move away. Mrs Reader again tried to put the arm in the sleeve, and Mrs Bullard again gestured. Mrs Sweeting saw Mrs Reader slap Mrs Bullard with an open hand. Mrs Sweeting then said to Mrs Tracey Price: "Lee has hit her". At this time Mrs Sweeting was feeding a patient. When she finished feeding the patient, she stood up and put the tray containing the food back on the food trolley. She then saw Mrs Reader dragging Mrs Bullard in a bear-hug to her room. Mrs Sweeting then went to Mrs Bullard’s room and saw that she had been incontinent and was crying. She was saying "I didn’t mean it, I didn’t mean it”. Mrs Sweeting could not recall whether anyone else was in the room at that time.

Mrs Sweeting was shocked by the incident. She discussed it with Mrs Price at the tea break and was crying at the time. She did not discuss it with Mrs Reader because she was very upset about what had happened. She discussed the matter with her parents that evening. She reported the matter to the registered nurse on duty the following morning, Mr Damien Dorgan. She was also called to a meeting with the director of nursing and the chairman of the board of the employer and told them what had happened.

Mrs Sweeting prepared a written report. Though it is undated, her evidence was she filled it out the day after the incident. The tender of the report was objected to and I initially ruled that it was inadmissible. However, after giving the matter further consideration and hearing the submissions of the parties, I concluded it was admissible having regard to the provisions of s 64 of the Evidence Act 1995 (Cth).

The report was a standard form headed "INCIDENT REPORT". The majority of the upper part of the form comprised multiple choice questions providing particulars of the incident. The only two questions answered indicated that the incident involved a patient and occurred in the day room. The bottom half of the report contained a section entitled "DESCRIPTION OF INCIDENT BY MEMBER OF STAFF REPORTING SAME (including injuries sustained and action taken)". The following appears in Mrs Sweeting's handwriting in that section:

"On Sunday 12th June, I witnessed R.N. Reader slap Mrs Vera Bullard across arm. I also saw her run down the passage & yell at her to go to her room."

Below this entry the name of the person on duty at the time is identified in handwritten printing as "R. N. READER". Mrs Sweeting has signed the form as the person reporting the incident.

When giving evidence, and in particular during cross-examination, Mrs Sweeting appeared to be unable to recall many matters of detail. Given that the incident occurred two and a half years ago that, in itself, is unexceptionable. However, she could not recall some matters of detail of some significance. Her evidence-in-chief was that Mrs Reader slapped Mrs Bullard though where was not specified. The incident report says it was across Mrs Bullard’s arm. In cross-examination that was confirmed but when asked which arm she said she did not recall.

Mrs Sweeting was plainly upset when giving evidence, started crying on several occasions and needed to compose herself before continuing. On other occasions she responded aggressively to Mrs Reader’s counsel who was cross-examining her. Some of the evidence she gave in cross-examination appeared to me to be disingenuous. This was revealed by both what she said and the way she said it. This was illustrated by evidence about the angle the chair in which the resident she was feeding was in relation to the wall.

Part of her evidence was that the back of the chair was against the wall. Having indicated the back of chair was against the wall, Mrs Sweeting was asked what angle the chair was to the wall. Mrs Sweeting indicated she was uncertain as to which chair was being talked about. The following then appears in the cross-examination:

"The one the resident was sitting in? --- I am sorry, I don’t understand your question.
The chair, is it 90 degrees to the wall; is that correct? If you pushed your chair straight back against the wall now? --- I would say it is flush against the wall.
Yes. And would you say at what angle is your chair to that wall? --- I don’t know, I failed maths, I was never very good at angles. It is flush against the wall.
I suggest to you that if you were to push your chair back, the chair would be 90 degrees to that wall. Do you seriously say you do not know that? --- To me 90 degrees is a right angle. Now, I don’t know what you call flush against the wall, I am sorry. I don’t see - I have said flush against the wall, the back hard against the wall.
Yes. And am I asking you another question now. Was not the chair, in terms of the wall, was that 90 degrees to it? That is, and to assist you, if you pushed your chair back now against the wall behind you, straight back, your chair would be flush against it; is that correct? --- That is right.
And it would be at 90 degrees to the wall ? --- So you are telling me or are you asking me?
That is a suggestion that may assist you as to whether or not that was the position the chair was in, in which the resident was sitting? --- The chair is flush against the wall. As to the angle, I am sorry, I said I do not know the angle of where the chair was.
So you can’t remember that? --- I can remember where the chair was but I said I can not define it in an angle term."

As a matter of fact, the position Mrs Sweeting was sitting in when giving evidence was such that, had she pushed her chair back, it would have been at right angles to the wall. This evidence is to be contrasted with evidence she gave shortly after, when describing the relationship of the chair she was sitting in to the chair the patient was sitting in. She said:

"Appreciating the difficulty you have with angles, Mrs Sweeting, are you able to say what angle your chair was positioned at to that of the patient? --- Right angles I would describe it.
Perhaps you might like to explain to the Court what you mean by right angles? --- I am sitting here, she is sitting there. To me that is a right angle."

Mrs Sweeting then indicted, by reference to the witness box she was sitting in, that the resident was facing in a direction at right angles to the direction she had been facing. She appeared to have no difficulty then with the concept of a chair being at right angles to another object.

Save for one matter, I would not have been entirely sure, having regard both to her demeanour and the evidence she gave, whether Mrs Sweeting was giving, as best she could, a fair and reliable account of the events on 12 June 1994. However I am satisfied she was not. A document in her handwriting was shown to her and became an exhibit. It was tendered by counsel for Mrs Reader without objection. The effect of s 60 of the Evidence Act 1995 (Cth) is that representations in the document about facts in issue become evidence of the existence of those facts. The document was a statement describing the incident on 12 June 1994 though her evidence as to when it was written is unclear. At one point in her evidence she said: "I wrote this down obviously the day it happened."

She had earlier given evidence that apart from the incident report she had, as far as she could recall, prepared only one other written statement of the incident. She said she wrote it when she went home on 12 June 1994, kept it at home and burnt it after what she described as the last Court case.

There was further cross-examination about when the hand- written statement was made. It was:

"So it is that fact that you can not remember this statement having been made? --- That’s correct.
But you accept that you made? It is my handwriting: it’s not signed.
Do you think that has any significance that it is not signed? --- I believe all - all documents should be signed.
So that this is not signed, does that mean what it contained here is not true? --- I disagree with that.
Yes this is a true recollection of your events; is it not? --- No.
You say this document is not a true recollection of your ... ? --- This document was written out then, what I recall now is what I recall.
But I am suggesting to you that what I have read to you is a true recollection of what happened? --- Obviously at the time of the date and the time written there.
Yes, and this was written something like 24 hours or there abouts after the events, and I am suggesting to you that this is --- ? --- How do you come at that? There’s no - the date on this is the 12th of the 6th ‘94 approximately 8.30am.
Yes? --- Where are you arriving at the date 24 hours later; there’s no date on the document.
His Honour: What did you say the document had, it had --- ? --- The 12th of the 6th '94 approximately 8.30am on the top of it; there is no date on it.
Mr Fehring; So you’re suggesting now this was written out months later? --- I’m not suggesting that, no, but I’m arguing with you, your saying to me that this was written the next day, --- yes? --- There’s no date on it.
But I am asking you a question, did you write this out the next day ---? --- I don’t ---
I think you’ve already agreed with me you did? ... I don’t recall writing this out, if you really want to know; I’ve said that. The only recollection of something being written out is what I had at home and I burnt after the last Court case."

Plainly the document was written before Mrs Sweeting gave evidence on this occasion. It is probable, in my opinion, having regard to the details contained in the document, that it was written comparatively soon after the incident. The document says:

LORNA 12.6.94
approx 8.30am

*I was assisting L Minns [illegible] b/fast, facing the nurses’ station.
*T.PRICE was sitting next to me assisting Vita.
Tracey had her back to the nurses [sic] station

*I noticed Vera had walked past trolleys near station past R.N. Reader & had commeted [sic] same to Tracey.
*As Vera walked past Lee, words were exchanged as Vera walked past
*Vera appeared to lash out at Lee & words were exchanged & Vera appeared to lash out as she turned around to walk back to her room, I then saw Lee hit Vera on the arm & say "you have hit me twice and that is what enough"
*I told Tracey - "Lee just hit Vera"
*Carole then walked in room, o [sic]
*Vera started to walk back towards her room & as she did she grabbed a bowl of cereal and through [sic] it on the floor. &
Lee then said "thats [sic] enough go to your room".

*I did not witness the rest but Carole did & all I heard Carole saying was Lee let her go, let her go.
*Lee returned to the drug trolley
*I then went & took Vera’s breakfast to her & she was visibly upset - & kept saying "I did not mean it - I did not do it"
*this all happened in about 3 - 5 mins."

Some words which were obliterated have not been reproduced. Lee is plainly a reference to Mrs Reader and a diminutive of her given name Cecile.

Several important matters emerge from this document. The first concerns the contrast between it and Mrs Sweeting’s oral evidence that Mrs Bullard gestured twice when Mrs Reader attempted to put Mrs Bullard’s arm into her dressing gown. The word "gestured" used in evidence-in-chief, and at times during cross-examination, is comparatively innocuous. It paints Mrs Bullard in a favourable light and its use would imply that any physical response by Mrs Reader was entirely unprovoked. In the handwritten statement, Mrs Sweeting twice uses the word "lash out" in relation to Mrs Bullard’s actions directed to Mrs Reader. Later in her cross-examination, when confronted with her handwritten description, Mrs Sweeting suggested "gestured" and "lashed out" described the same thing. They plainly do not, and it is likely that Mrs Sweeting deliberately used the word "gestured", in my opinion, to advance the case of the employer based, as it is, substantially on a complaint by her about Mrs Reader's conduct.

More significant is that part of the handwritten statement concerning events after Mrs Bullard threw food on floor and then when Mrs Reader approached her and directed her to go to her room. In it Mrs Sweeting said she "... did not witness the rest but Carole did and all I heard Carole saying was Lee let her go, let her go." Not only is there no mention of any bear-hugging and dragging of Mrs Bullard by Mrs Reader, but a statement is made that "the rest" had not been witnessed by her. That Mrs Sweeting did not see Mrs Reader bear-hug and drag Mrs Bullard back to her room is reinforced by the absence of any reference to it in the incident report and the reference only to Mrs Reader running down the passage and yelling at Mrs Bullard. This issue was raised with her in the following passage of her cross-examination:

"I suggest to you that you did not see anything thereafter? --- I disagree.

And your statement made shortly after, the next day or, does not record - positively records that you did not see anything further? --- No. I recall seeing things.
So I suggest to you the evidence you gave yesterday that you went to the food trolley and you saw this dragging is something you have made up? --- No I disagree.
Is it something that you have been told by others? --- I disagree."

Mrs Sweeting then goes on to deny that she has discussed the matter with Mrs Carole Kinnear with perhaps the qualification that she may have done so at the time it was reported. I do not accept her evidence that she saw Mrs Reader bear-hug Mrs Bullard and drag her to her room. In my opinion, at best, Mrs Sweeting only saw an incident which she viewed as a slapping of Mrs Bullard across the arm by Mrs Reader. I cannot say with entire confidence that Mrs Sweeting's account was deliberately false. It may be that she knew what others have said about the incident and now imagines she saw it. However, on either basis, her evidence should be rejected in relation to the bear-hug and dragging, and the remainder of her oral evidence should be approached with some caution.

The next witness called by the employer was Mrs Kinnear. In her evidence-in-chief Mrs Kinnear said she was a State Enrolled Nurse presently employed at Wyndham Lodge and had been employed there for eight years. Her duties involved taking care of the residents including bathing and showering them. She described Mrs Bullard as violent and cantankerous but said that she could be nice when the mood took. She had experienced Mrs Bullard’s violence on one occasion when her hair was pulled and others on when she had been pinched.

She described an incident at breakfast time on the day preceding the Queen’s Birthday public holiday in June three years ago. She was walking towards the day room from the green area. Mrs Reader was at the drug trolley, which was in front of the nurse’s station. She then said:

"Vera walked past her, walked towards her, and as she was level with her Lee hit her on the back and then Vera continued ---
Could I just - I am sorry, could I stop you there? --- Sorry.
You said Lee hit her in the back. Could you be a bit more specific about the hit, how did that happen? ... She hit her. She had a closed fist and you could hear her hit her and I saw her hit her.
What did you hear? --- Like a thump, like - yes, she hit her, it was a thump."

Mrs Kinnear then described how Mrs Bullard continued to walk to a food trolley from which she took a plate and threw it. Mrs Reader chased after Mrs Bullard and pulled her down the passageway towards to room. Mrs Kinnear said Mrs Reader dragged Mrs Bullard from behind with her arms around her and pulled her down the passage. At this point Mrs Kinnear indicated, by way of demonstration, how Mrs Reader’s arms were placed around Mrs Bullard. She indicated several versions of how they were located. The first involved her arms being crossed with the open but cupped hand of one arm around the upper arm of the other. She also indicated a similar posture though with clenched fists near the upper arm of the opposite arm and also indicated a much looser or open hold where the arms were not completely crossed and the one hand grasping the wrist of the other. She then indicated that she was behind Mrs Reader and could not see where her hands were.

As Mrs Bullard was being pulled down the passage Mrs Kinnear was walking "behind" towards them. She said to Mrs Reader: "Would - just leave her alone, just leave her alone". Mrs Reader continued to walk down the passage and Mrs Kinnear was following her. When they reached Mrs Bullard's room, Mrs Reader threw Mrs Bullard into the chair which was situated in the doorway into the room. Mrs Bullard kept saying she was sorry. No one else was in Mrs Bullard's room. Mrs Kinnear then went back and picked up the plate Mrs Bullard had thrown. At breakfast she spoke with Mrs Sweeting and said to her: "Did you see that".

Mrs Kinnear discussed the matter with the registered nurse who came on duty that afternoon, Mr Damien Dorgan. She told him what had happened and he said she had to report it. The next day she spoke to another nurse who she rang at home. While it is not entirely clear, it would appear she rang another registered nurse as well as the director of nursing. She also filled in an incident report on the public holiday, that is, the day after the incident. It took the same form as the indicient report completed by Mrs Sweeting. Mrs Kinnear ticked a box in the upper half of the form indicating that the incident occurred in the day room. The handwritten description of the incident in the lower half of the form was:

"On Sunday 12th June I saw R.N. Reader hit Vera Bullard in the middle of her back, then drag her to her room, and throw her in her chair."

The name of the person on duty was identified as "R.N. Reader" and the form is signed by Mrs Kinnear.

As a result of her cross-examination, I was left with a real doubt about whether Mrs Kinnear could now recall events that occurred on 12 June 1994. At one point she was cross-examined about how far she was from Mrs Reader at the time she observed the punch. She indicated she was being confused by the questions. Counsel for Reader then said:

"I am simply asking you a very straightforward question. You say you have a recollection of this event? --- Yes, of course I do."

However her evidence, in at least two respects, indicates otherwise. The first indication relates to where she was when she witnessed the incident. At two points during her cross-examination, one late in the morning and the other early in the afternoon, she was asked about where she was positioned when she saw Mrs Reader punch Mrs Bullard. In the morning she indicated she was in the walkway between the nurses’ station and the wall. That is, the walkway from the day room passing to the left of the nurse's station and leading to the west wing. When it was suggested to her that she was still behind the nurse's station but only one or two feet from it she indicated she was not behind it and that she was in the walkway. She went on to indicate she was "right near" the swinging door in the nurse's station. In the early afternoon the following questions were put to her:

"Mrs Kinnear, are you sure today that you are correct in the evidence that you give that you were standing just next to the nurses’ station near the entrance that you have described? --- In the walkway, yes.
But next to the swinging door on the other side of the photograph? --- Yes
Just next to that swinging door? Yes, not the one in the front of the nurses’ station.
No? --- Yes.

And are you sure that, in fact, you are not standing some feet closer to the green wing before you get to the nurses’ station? --- No, I don't remember."

The last statement that she did not remember rather suggests that the earlier unequivocal answers about where she was standing must be doubted. She was cross-examined about evidence she gave before the Judicial Registrar concerning where she was when she saw the incident. It is reasonably clear from what was put to her that the account she then gave differed from the account given in the present proceedings. She had placed herself some feet behind the nurse's station at the time she saw the incident.

The second indication that her present recollection of the incident is not a reliable one, and it is of greater significance, is the vagueness of her evidence about what exactly she saw. In her evidence-in-chief she had said Mrs Reader hit Mrs Bullard in the back. I have already set out what she said.

She was cross-examined about what she could recall about the punch:

"Where do you say the punch landed? --- In the middle of her back.
Can you be any more precise? --- No.
Well, did she punch her, for example, between the shoulder blades? --- I don't remember.
Or was it down more near what we describe as the belt-line, somewhere just near her waist? --- I don't remember.

So you have got no recollection of it landing anywhere between the buttocks and the top of her head? --- She hit her in the back; that’s what I remember.
Yes, I am asking you to try and be a little more careful about what you say happened --- That’s how I recall it. She hit her in the back.
But you do not know where? --- The exact spot, no."

I find it difficult to accept that this reflects the evidence of a witness who presently recalls one person hitting another on the back. That is not to say I am now indicating Mrs Kinnear did not see Mrs Reader hit Mrs Bullard in the back. Rather, her oral evidence that she can now recall seeing it must be doubted.

During her cross-examination, greater details emerged about what she said she saw. Her evidence was to the effect that after Mrs Reader hit Mrs Bullard and Mrs Bullard threw food on the floor, which she said was vitamised fruit, Mrs Reader took off, running after Mrs Bullard. Her evidence was that Mrs Reader caught up with Mrs Bullard near a sink in the Bullard corridor. From one of the photographs in evidence it appears that the sink is a metre or so along the Bullard corridor on the right hand side of that corridor moving away from the day room. Mrs Kinnear was cross-examined about where Mrs Reader caught up with Mrs Bullard:

"So she is into the corridor is she? --- That’s right.

And she has certainly gone beyond the lounge area? --- Yes. Are you certain she has gone into the corridor area by the time Mrs Reader catches up with her? I can't remember.
So might she still be in the lounge then or the lounge area ---Mrs Bullard is certainly still walking towards her room is that correct? --- Yes."

Mrs Kinnear accepts that when Mrs Reader took hold of Mrs Bullard, Mrs Reader asked her, Mrs Kinnear, to come and assist her. Mrs Kinnear rejected the suggestion that at that stage she actually helped Mrs Reader take Mrs Bullard to her room. Her evidence was that Mrs Reader dragged Mrs Bullard backwards down the corridor to her room.

One matter of some significance raised with Mrs Kinnear bears upon her credit. She agreed that on 17 December 1994, after she had given evidence, she said she had lied in Court. She said it was a sarcastic remark. She agreed that she had said that she had lied about Mr Harrison sitting in Vera's chair but denied saying that she lied in her evidence about when she filled in a statement or completed the incident report. In re-examination she gave evidence:

"Your response, as I understood it, was that it was a sarcastic remark; could you describe what you meant by that? --- Well, somebody had said to me "Stan was sitting in that chair" and I went, "Oh, shit, I lied in Court", and it was being smart, being sarcastic."

Evidence was given by Mrs Hazel Edwards. She is a Registered Nurse (Division 2) who commenced working as a casual at Wyndham Lodge in 1990 and commenced part time employment in 1991. She presently works at Wyndham Lodge. She gave evidence that in June 1994 the residents at Wyndham Lodge were mainly dementia residents. As to Mrs Bullard, she said she could be aggressive at times but was also a lovely lady when she wanted to be lovely. She said she could be difficult to handle at times. Mrs Bullard had pulled Mrs Edwards hair and had tried to strike out at her.

She gave evidence of an incident in December 1993. She had been having her evening meal in a tea room and she heard Mrs Bullard screaming and crying. She also heard Mrs Reader's voice, which was raised. Mrs Edwards walked to the door of the tea room to see what the noise was about. She looked across the corridor towards a four bed ward. She saw Mrs Reader behind Mrs Bullard holding on to the tops of her arms and pushing her through the door. She saw Mrs Bullard catch her right arm on the side of the surrounds of the door. She knocked her arm on the way through the door. Mrs Edwards then went up to Mrs Bullard and Mrs Reader, and asked "what is going on here?" She added: "this lady has a fractured arm". She then helped Mrs Bullard into the tea room, sat her on the armchair opposite a table and made her a cup of tea. She tried to calm Mrs Bullard who was crying and holding her arm. She described Mrs Bullard as then having a fractured arm though later referred to it as an injury to the elbow and explained that it was for that reason that Mrs Bullard was not wearing a cast. While Mrs Bullard was meant to keep it in a sling, she did not do so. The arm was swollen and had some bruising.

Some time after Mrs Edwards took Mrs Bullard into the tea room, Mrs Reader entered. She was angry and very cross. She said words to the effect: "how dare you undermine my nursing ability". Mrs Edwards responded by saying: "if that was my mother I would have you up for assault". Mrs Reader then left the room. Mrs Edwards rang a senior sister at home about the matter. She then made an entry in the complaints book. I rejected the tender of the relevant entry in the complaints book as it did not appear to me to concern a representation about the fact in issue, namely, the pushing of Mrs Bullard through the door.

In cross-examination Mrs Edwards described several times the way Mrs Bullard was being held. The last description was one in which she indicated that Mrs Reader was behind Mrs Bullard and was holding her upper arms at a point roughly mid way between her shoulder and elbow. She agreed that Mrs Reader's hands were below Mrs Bullard's "shoulder height". During cross-examination it was clear that Mrs Edwards held the view, and held it strongly, that the way Mrs Reader had dealt with Mrs Bullard was inappropriate. Mrs Edwards was reluctant to accept the proposition that there would be situations where a resident might be physically removed from a room. However she ultimately accepted that it might be necessary though indicated that the way Mrs Reader went about dealing with Mrs Bullard was inappropriate. Her evidence-in-chief about the manner in which Mrs Reader went about it seemed to depend, at least in part, on it being done in a particular way in circumstances where Mrs Bullard had a fractured elbow. In her evidence-in-chief, Mrs Edwards indicated she saw Mrs Bullard catch her right arm on the side of the surrounds of the door. That is, she knocked her arm on the way through the door. It is to be remembered that whatever Mrs Edwards saw, she saw it after Mrs Bullard commenced screaming and crying. At least the initial screaming and crying was not as a result of any damage or soreness to the elbow resulting from the bump she saw.

I will shortly discuss Mrs Reader's account of the incident which, as to the substance of what occurred, accords generally with the account of Mrs Edwards. However, even accepting Mrs Edwards' account as accurate, and she presented as a witness endeavouring to give a truthful account of the incident, I find it difficult to conclude, as her evidence implies, that Mrs Reader's conduct was beyond what is acceptable. It was led and admitted as propensity evidence. Mrs Edwards evidence was not that Mrs Reader was using extreme or unwarranted pressure in pushing Mrs Bullard from the room though, on Mrs Edwards account, Mrs Reader was probably irritated by, if not angry with, Mrs Bullard. Pushing someone by holding them at a point midway between the shoulder and the elbow would ordinarily not provide a means of effecting maximum forward pressure on the person being pushed. Mrs Edwards' evidence was not that Mrs Bullard was resisting and pushing backwards which might make the mid-upper arm a comparatively rigid point from which to push. Indeed, in cross examination Mrs Edwards spoke of seeing Mrs Bullard being "led" through the doorway and, at another point, of "being helped out of the ward". In my view, on Mrs Edwards' account, it is probable that the initial screaming and crying resulted from the distress occasioned to a person suffering dementia at being removed from a location the person was insisting upon remaining in. It is true that Mrs Bullard, on Mrs Edwards account, struck her elbow when passing through the door. However I am not positively satisfied, on this account, that that arose as a result of any inappropriate handling by Mrs Reader.

The evidence of Mrs Edwards was admitted as tendency or propensity evidence having regard to s 97 of the Evidence Act 1995 (Cth). The facts in issue involved inappropriate physical contact between Mrs Reader and Mrs Bullard in circumstances where Mrs Bullard may have engaged in provocative conduct. This is particularly so having regard to the allegation that Mrs Reader had grabbed Mrs Bullard in a bear-hug and dragged her to her room after Mrs Bullard had grabbed food from a trolley and thrown it to the floor. On the basis of the evidence that Mrs Edwards had given before the Judicial Registrar, to which I was referred, that Mrs Reader had been holding Mrs Bullard by both shoulders and forcing her out the door, I did not form the view that the evidence would not have significant probative value: see s 97(1)(b). To the contrary I viewed it as material evidence potentially probative of the facts is issue: see DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 at 603-606 and especially at 605. While I was not satisfied that adequate written notice had been given: see s 97(1)(a), I gave leave under s 100 because the evidence of Mrs Edwards had been given before the Judicial Registrar. Those representing Mrs Reader were aware of its general import. General notice, oral and written, was given of the intention to adduce evidence of incidents involving Mrs Bullard and Mrs Reader other than the incident of 12 June 1994. The employer also sought to adduce evidence of an incident when Mrs Reader was alleged to have thrown water at Mrs Bullard after she had thrown a cup of tea at Mrs Reader. The incident involved no physical contact between them and was thus, in my opinion, not likely to have significant probative value.

The employer called three other current employees at Wyndham Lodge. Two, Mrs Tracey Price and Mrs Linda Cooper, were asked about anything they may have been told in December 1994 concerning the litigation between Mrs Reader and the employer. Neither could, and neither was cross-examined. Somewhat curiously Mrs Price was not asked any question in examination in chief about the incident in June 1994. According to Mrs Sweeting, Mrs Price had been in the day room at the time Mrs Reader is said to have hit Mrs Bullard. Indeed Mrs Sweeting's evidence was that she spoke to Mrs Price and observed that Mrs Reader had hit Mrs Bullard. Mrs Price was not asked about this nor anything else about what she saw or heard on the day in question. While the rule in Jones v Dunkel (1959) 101 CLR 298 ordinarily arises when a person is not called to give evidence, its application extends to circumstances where a person was called to give collateral evidence but not asked questions about the facts central to the proceedings: see Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA. I proceed on the basis that the evidence of Mrs Price would not have assisted the employer in its case. The relevance of this would principally be if it was material whether Mrs Sweeting's evidence that she said to Mrs Price: "Lee has hit her" should be accepted or rejected. However, as I am, in any event, generally not inclined to accept Mrs Sweeting's oral testimony as to matters of detail that occurred on the morning of 12 June 1994, the failure to ask Mrs Price questions about the events of 12 June 1994 is of limited consequence.

The employer called one other witness concerning statements or conversations in December 1994. Mrs Patricia Hoyn gave evidence about a conversation that occurred in, it would appear, December 1994. She heard Mrs Carole Kinnear saying "I lied in Court". This occurred at a time when Mrs Kinnear, Mrs Price, Mrs Cooper and Ms Colleen McDonald (now Mrs Sullivan) were together outside Wyndham Lodge in a courtyard area. She could not recall the words spoken by Mrs Kinnear before or after the words she gave evidence about.

The last witness called by the employer was Doctor Peter Desmond. He is a general practitioner. Part of the practice involved attending to patients at Wyndham Lodge. He attended on 13 June 1994. He wrote a report in the file maintained in relation to Mrs Bullard. It read:

"13.6.94Requested to attend at Wyndham Lodge
to inspect and assess Mrs Bullard

re - assault -
She is tender over T4 T6 midline level
of thoracic spine
No bruising noticed on face
Trunk.
(L) forearm slight bruise; scabs healed
on [illegible] [illegible]
Suggest unable to confirm any evidence of
assault on this examination. Findings of the
back could be consistent with battery."

In his oral evidence Dr Desmond described the location of the tenderness as the high back between the shoulder blades. He had formed the view that Mrs Bullard was clinically sore in the back. However there was no actual fresh bruising or scars. In making the assessment, Dr Desmond was not relying on anything he had been told by Mrs Bullard as she was, in his opinion, totally unreliable. He expressed the opinion that:

"I basically couldn't find any active or fresh cuts or anything like that to suggest the person had been assaulted but I said I felt that the tenderness in the spine could be compatible with somebody being hit."

He later said that the tenderness was consistent with somebody being belted in the back. He said it was also consistent with her having fallen. He accepted that he was no more certain that she had fallen than he was that she had been belted. In cross-examination,Dr Desmond said that his findings concerning the back were consistent with Mrs Bullard having been hit but accepted that they were consistent with other things, including her having fallen or having knocked herself. He did express the view that had she suffered a blow to the back he would not have expected to find any bruising. He also expressed the view that there was only old bruising on the forearms. He said that had Mrs Bullard been dragged in a bear-hug there might have been bruising though his answer was qualified. It was also qualified by the observation that it is possible she would not have sustained bruising because she was wearing a dressing gown and nightie. Dr Desmond said that the conclusion that he reached that she was tender arose from her saying "Ouch" when he touched the tender area, which was contrasted with other areas when there was no such response.

Two witnesses were called on behalf of the applicant. On was the applicant herself and the other Mrs Colleen Sullivan (formerly McDonald). Mrs Sullivan had not given evidence before the Judicial Registrar.

The applicant gave evidence that she had been born in 1939 and obtained the qualifications of a Registered Nurse in June 1962. Her career in nursing included a wide range of nursing duties.

Mrs Reader commenced working at Wyndham Lodge in September 1987. As the Registered Nurse-in-charge of a shift at Wyndham Lodge she was in charge of the care of the residents and the remainder of the nursing staff. It was part of her role as the Registered Nurse in charge of the shift to dispense medication to the residents. In 1994 there were 30 residents in all, who were a mix of elderly, frail, males and females who were unable to care for themselves. Most had some type of dementia and 70% to 80% would have true dementia. She described Mrs Bullard as a person who could be a very nice lady but who could also be a very aggressive lady. She said Mrs Bullard had a habit of being very nice and cuddly one minute and at other times being very obstructive to other residents. Mrs Bullard hit other residents, sometimes hit staff and threw things around the room.

In her evidence-in-chief Mrs Reader described the events of 12 June 1994 in the following way. She said she took the medication trolley out of the nurses’ station and down the Bullard corridor beyond Mrs Bullard's room. There she commenced giving medication to the residents who were still in their room. She had commenced distributing the medication at about 8:00am and this went on for approximately a quarter of an hour. She then went back to the day room and proceeded to give medication to the residents in that room. She placed the medication trolley next to the counter which formed part of the front of the nurses’ station. She marked on a photograph a position next to the counter when it first turns away at 45 degrees. She also indicated that a food trolley was positioned in front of the counter at the point where it is in line with the farther wall of the reception and Bullard corridors.

At this time there were approximately twelve residents in the day room. There were, in all, approximately 15 chairs in the day room, positioned along the left and right walls of the day room looking from the base of the U. Mrs Reader said that Mrs Sweeting and Mrs Kinnear were in the day room. Mrs Sweeting was sitting on the right wall and was feeding a resident sitting six chairs down from the nurses’ station. Mrs Kinnear was on the opposite side of the day room feeding a resident about three chairs down from the nurses’ station.

Mrs Reader had distributed medication to about three residents when she looked up and saw Mrs Bullard standing in the day room just near the first lounge chair. That is, the lounge chair closest to the nurses’ station on the right wall looking from the base of the U. Mrs Reader had earlier seen Mrs Bullard at 7:15am. When Mrs Reader saw her the second time in the day room, Mrs Bullard had her dressing-gown wound around her upper arms. Mrs Reader went across to Mrs Bullard and said: "Let me assist you with your dressing gown."

Mrs Reader commenced to open the top button so that she could release Mrs Bullard's arms and re-adjust the dressing-gown. Mrs Bullard then put one arm straight out directly in front of her and slapped Mrs Reader across the face on one side, and then extended the other arm directly out and slapped her again on the other side of her face. Mrs Reader then turned to walk away from Mrs Bullard but Mrs Bullard grabbed her apron and tore it. Mrs Reader said: "Can I have my apron back please?", and undid Mrs Bullard's fingers, which were clenched tightly around the apron. After Mrs Reader had released her apron she walked away. She walked back to the medication trolley which was a distance of approximately six feet. She then continued to dispense the medication.

Mrs Bullard then walked past Mrs Reader, up, she supposed, the reception corridor. She then went out of Mrs Reader's sight. Mrs Reader continued giving out medications but, at the same time, called over her shoulder: "Vera, come back and have your breakfast." As she was preparing one resident's medications, she suddenly received a punch in the middle of her back with a full fist. Mrs Reader turned and Mrs Bullard walked past her. Mrs Reader said "Vera, don't do that to me", and she held Mrs Bullard by the arm. She demonstrated the way in which she held Mrs Bullard. She indicated her lower left arm was horizontal, with the hand in a semi-closed fist or grasp. Her right upper arm was extended slightly out with her forearm vertical. The palm of her right hand was open and facing forwards. She was thus indicating a hold where she was grasping Mrs Bullard's left forearm from the underneath and placing her right palm on Mrs Bullard's back.

She maintained this contact with Mrs Bullard for only a second. Mrs Bullard continued walking. She walked towards the breakfast trolley, a matter of steps, and picked up a bowl of crushed pineapple. She threw it to the floor. When she threw it to the floor, the crockery smashed and pineapple went everywhere. She then kept walking. Mrs Bullard threw the pineapple near the chair closest to the nurse's station on the right side of the day room looking from the base of the U. Mr Stan Harrison, a resident, was then sitting in the chair. She also said the chair in which Mr Harrison was sitting was the chair in which Mrs Bullard ordinarily sat. Mrs Reader said that the food went on the floor very close to Mr Harrison and that: "I think some of it went on his chair, it didn't actually go on him".

After Mrs Bullard had thrown the food on the floor, Mrs Reader went over to her and said: "If you are not feeling well you had better come to your room". Mrs Reader then proceeded to take Mrs Bullard by the arm, with her right arm under her forearm, and walk with her to her room. Mrs Bullard then did what Mrs Reader described as an about-face, and was facing Mrs Reader with her knees bent. Mrs Reader walked around behind Mrs Bullard and put her arms between Mrs Bullard's arms and her upper body and hooked her hands over Mrs Bullard's forearms. Mrs Reader said she did this because Mrs Bullard had bent her knees, indicating she did not want to go.

Mrs Bullard started to lean back and straightened her body out, which enabled Mrs Reader to walk backwards to lower her to the floor because she was too heavy for Mrs Reader to hold. Mrs Reader did not lower her to the floor entirely as Mrs Kinnear came running over and said "Let me help you Lee" and took Mrs Bullard from the other side. Mrs Kinnear took Mrs Bullard's left arm and she, Mrs Reader, took her right arm. They then walked Mrs Bullard back to her room, a distance of six to eight feet and sat Mrs Bullard in the chair. Mrs Reader said to her "Vera, you had better stay here until you’re feeling well enough to come out".

Mrs Reader then continued to dispense medication. Mrs Reader said she finished her medication round at about 9:15am and then returned the drug trolley to the medication room, unset a system of cards used to dispense the drugs, locked the drug trolley, washed up all the medication cups and replaced part of the card system used to dispense the drugs. She then went on to assist with the general care of the residents, including washing and dressing them, for a short time. This took until about 9:45am when she went to morning tea with Mrs Kinnear and Mrs Sweeting. Morning tea was between 9:45am and 10:00am. At morning tea she said to Mrs Kinnear and Mrs Sweeting that: "I'm just sewing my apron. Vera’s torn it". She was, at the time, sewing the apron.

Mrs Reader also gave evidence-in-chief about an event in December 1993, though she could not be precise about when. It was an incident that occurred during the evening shift. Mrs Reader and another nurse had been in room 14 settling residents. This is the room about which Mrs Edwards gave evidence. It is a room off the reception corridor and opposite a small corridor in which the tea room is located.

There were at least three residents in the room at the time. Mrs Reader was behind a screen attending to a resident and was settling her in her bed. The resident was in a state of undress. Mrs Bullard came into the room and behind the screen. She was asked by Mrs Reader to leave. Mrs Bullard kept coming back and did so on three occasions. Mrs Reader said to Mrs Bullard that her behaviour was not acceptable and told her she had to leave the area. Mrs Reader said she made it clear to Mrs Bullard that she was invading the privacy of another resident. Mrs Reader said Mrs Bullard was insisting on coming close to the resident and she did not know what Mrs Bullard might do. Accordingly, she walked behind Mrs Bullard, put her hands on Mrs Bullard’s hips, ushered her out of the room into the corridor, and shut the door behind her. Mrs Reader remained in the room. At that point, Mrs Bullard starting yelling very loudly. Mrs Edwards came out of the tea room and said to Mrs Bullard: "What is the matter". Mrs Bullard started crying and was upset and yelling. Mrs Edwards took Mrs Edwards into the tea room with her. Mrs Reader went back to attending to the resident. The door of room 14 was a heavy door that opened inwards. It was made of wood in the lower half and had a glass window in the upper half.

When Mrs Reader was giving her evidence-in-chief she impressed me as a thoughtful witness who took care in answering questions. She appeared often to reflect on the question and then, in a slow and deliberate manner, answer the question in a way that suggested the answer was a considered one. Were it not for several matters that arose in cross-examination, I would have concluded she was giving an honest account of what she could recall comparatively clearly. However, in her cross-examination a number of matters, minor in themselves, left me believing that the impression she had given during her evidence-in-chief could not be relied upon.

The first matter concerns the return of the drug trolley after she had dispensed the medications on the morning of 12 June 1994. In her evidence-in-chief she said:

"What did you do after that? --- I took the drug trolley back to the medication room and unset the Webster System and locked the drug trolley, washed all the medication cups, replaced part of the Cardex System that was empty from the replacement draws, ..."

Mrs Reader was cross-examined about this evidence. It was first put to her that she could recall taking the trolley to the medication room. In response to this she said: "I'm saying that is what I would have done." Several questions later she is then asked:

"But you do not remember having done it on the particular day in question? It is something that you would have done every day but you do not remember it, is that correct? --- As soon as I finished the medication round I would automatically do it."

Several further questions were asked to explore this issue and then the following appears:

"I ask you do you remember it today? Do you remember having done it on 12 June 94? --- Yes.

You remember it, you are certain? --- I’m certain, I can see it as though it was yesterday - it probably sticks out in my memory because that is what I would always do. It’s a law I suppose, its in the law. I don't know how to explain it.

There was then another question about what she did. She was then asked:

"Mrs Reader again, is that something you remember today, doing on 12 June ‘94? Do you remember it --- I'd have to say I don't precisely remember it, but do that. I always did that. So I definitely did it as soon as I had finished the trolley.

So when you responded to a question from Mr Fehring that on 12 June 94 at approximately 9.15am, you did the following things, you were really saying you do not remember having done them but you think you would have done them because you did them every day? Is that correct? --- I’m saying I definitely did it.
Mrs Reader, that is not the question. I am asking you whether you remember having done it or whether you think you remember having done it because it is what you did every day? --- I remember having done it.
Some on 12 June '94 you remember having done - taken the trolley back to the medication room and you remember taking the cards off the trolley and you remember taking the Webster system off that day at 9.15am? --- Well, I can't be exactly as precise as saying I remember it that day but I know I did it that day and I did it as soon as I finished the medication round."

Mrs Reader then reasserts in several further answers that she could remember doing it. Plainly, in my opinion, Mrs Reader had no actual recollection of having taken the drug trolley back to the drug room on 12 June 1994 and dealt with it in the way she described in her evidence-in-chief. I accept her evidence that she always did it and thus it is, at the least, highly probable she did it on 12 June 1994. However, the significance of this cross-examination is the vacillation of Mrs Reader between conceding that her account was based on the probability of having done it on the one hand and, on the other, asserting that she could actually recall it. In my view she was given a fair opportunity to concede what I believe to be the case, namely that she could not actually recall returning the drug trolley on 12 June 1994. She was not prepared to unequivocally make that concession.

Another matter of detail, again itself a matter of no consequence, concerned her evidence about whether the pineapple that had been thrown by Mrs Bullard landed on both the chair Mr Harrison was sitting in and on Mr Harrison. Her evidence-in-chief was:

"When the food went on the floor, how far was it from Mr Harrison? --- Very close; I think some of it went on his chair, it didn't actually go on him."

Mrs Reader was cross-examined about her recollection. First she was asked:

"But it does not land on the chair or the resident, is that correct? --- Some of the pineapple, I think, landed on the chair, but very close to it, but not on the resident.
Is that something you recollect; the pineapple landed on the chair, and not the resident; do you remember that today? --- I'm sure it didn't land on the resident.
Do you remember it landing on the chair; are you remembering that today? --- A little tiny bit.
Is the answer yes, or, no, Mrs Reader? --- Yes."

Mrs Reader was then cross-examined about the evidence she had given before the Judicial Registrar. She had then said:

"... the residents were sitting along here and along here and it sort of hit there near the trolley and there was a resident here which almost - it just missed the resident that would have been sitting there. The contents certainly hit the chair and the resident but the glass just - the crockery just missed. It didn't actually hit anyone."

There is an element of ambiguity in this answer. However, read in context, it appears to be evidence that the contents of the plate that had been thrown hit both the chair and the resident but the crockery itself hit no one. Indeed Mrs Reader ultimately conceded that what she had earlier said in the proceedings before the Judicial Registrar was inconsistent with the evidence she had given in these proceedings. After making that concession this appears in the transcript:

"Thank you? --- It was only such a tiny amount of pineapple."

The "thank you" was an indication of gratitude by the cross-examiner for the concession just made that the evidence was inconsistent. The response of Mrs Reader, referring to the tiny amount of pineapple, was said with an air of resignation. I gained the clear impression that what Mrs Reader was really saying was that she may have made a mistake about whether the pineapple hit the resident but it did not really matter because it only involved a small amount of pineapple. However the significance of the evidence arises in an entirely different way.

As I indicated earlier, the evidence-in-chief of Mrs Reader, including her evidence about where the pineapple fell, was given in a assured way that left me believing it was a matter about which she had a comparatively clear recollection. This aspect of her cross-examination left me with entirely the opposite impression. I do not consider she had any real recollection of whether the pineapple hit the resident, the chair or where it went. While Mrs Reader cannot be criticised for not remembering that detail, the significance of this cross-examination is the effect it has on the view I take of her as a witness more generally.

The last matter concerns the event in, probably, December 1993. Mrs Reader's account accords substantially with that of Mrs Edwards. However it is to be contrasted with the evidence Mrs Reader gave before the Judicial Registrar. In the earlier proceedings she had said:

"I placed my hands on her waist ---
Yes? ---and opened the door and ushered her through the door.
Thank you. And this was late 1993? --- Yes.
Thank you.Did she go with you quite voluntarily? --- She went out the door, went up the corridor.
Quite peacefully or ---? Yes."

It is difficult to reconcile this account of that event with the evidence given in these proceedings where, on Mrs Reader's account, Mrs Bullard commenced yelling very loudly and started crying and was upset. Mrs Reader gave her evidence in the proceedings before the Judicial Registrar, before Mrs Edwards gave her evidence in those proceedings. There is no direct evidence whether Mrs Reader heard Mrs Edwards giving her evidence though she denied reading the transcript of the proceedings. However the disparity between her account before the Judicial Registrar and in these proceedings is marked. In addition, there were aspects of Mrs Reader's account of some of the details of this incident that left me quite sceptical that events occurred as she recounted them.

In her evidence-in-chief, Mrs Reader said, without any hesitation or qualification, that the sequence of events was, first she ushered Mrs Bullard out of the room, second, she shut the door behind Mrs Bullard, third, Mrs Bullard started yelling very loudly, fourth, Mrs Edwards came out of the tearoom, fifth, Mrs Edwards said what is the matter, sixth, Mrs Bullard started crying, was upset and yelling and, seventh, Mrs Edwards took her into the tearoom. In cross-examination Mrs Reader repeatedly said that she had shut the door before Mrs Bullard started yelling. I gained the impression it was something she wished to emphasise. That account has her physically removed from Mrs Bullard before she starts yelling and, by implication, disconnected from the resident when she started to yell. This aspect of the incident Mrs Reader was quite clear about. The following appears in cross-examination:

"Well, do you agree that you took Mrs Bullard into the corridor? You led her from room 14 into the corridor, directly outside room 14? --- Yes, I ushered her into the corridor.
Yes, and it was at that point that Mrs Bullard started to cry and was screaming and yelling, according to what you said yesterday? --- I closed the door behind her and then she started yelling.
She was yelling, was she not, and she was crying? --- Yelling at first and then crying.
And then crying? --- A bit later.
And you say it was at that point that Mrs Edwards arrived in the corridor? --- Mrs Edwards came out of the tea room.

And you are quite clear, are not you, that that is what happened? You are quite clear today that that is what you remember? --- Yes."

However, in her evidence-in-chief she indicted that she heard Mrs Edwards say something after the door was shut. She said nothing in her evidence-in-chief about any conversation with Mrs Edwards or Mrs Edwards opening the door to speak to her. In cross-examination she accepted that Mrs Edwards said something about Mrs Bullard's arm. Mrs Reader described Mrs Edwards remarks in cross-examination the following way:

"Just the [sic] verbalised with me in very loud tones about what she felt had happened. I let the situation go and she attended to Mrs Bullard."

When asked whether this conversation took place through the closed door, Mrs Reader said she thought Mrs Edwards opened the door and talked to her though the door. Mrs Reader said:

"She opened the door and called to me, and I walked into the corridor, something like that. It was after - she stood speaking to Mrs Bullard for a little while before ---
I am sorry, Mrs Reader, I missed part of that answer. I apologise. Could you just repeat the answer? --- It was after Mrs Edwards had approached Vera and had been talking to Vera, then she approached me; and I am not sure whether she opened the door again to talk to Ms Sweeting, or whether she opened the door and I walked through the door into the passageway and spoke to her, because - well, she actually spoke to me in very verbal tones, as to what she felt happened."

I am inclined to accept the submission made by the employer that Mrs Reader has modified her account of the events in question to accord more closely the account of Mrs Edwards but on a basis that favours her own case. I certainly accept Mrs Edwards, account in preference to that of Mrs Reader. While, as I earlier indicated, Mrs Edwards appeared unduly critical of Mrs Reader's conduct having regard to standards that appeared, at times, a little unreal, she nonetheless impressed me as a truthful witness. Mrs Reader's account, as I have just discussed, was, in my opinion, a strained one. She was certain the door was shut before Mrs Bullard started yelling. They were thus physically removed from each other. This, however, gave rise to the difficulty of how she then conversed with Mrs Edwards. This difficulty is met by having Mrs Edwards open the door (which Mrs Reader had earlier shut) so as to engage in this conversation, a matter not mentioned by Mrs Reader in her evidence till the question of how the conversation took place was raised.

It is possible that having been made aware of Mrs Edwards account, perhaps by hearing her evidence, Mrs Reader's memory was jogged and her recollection improved so that a fuller and different account could be given in these proceedings than was given before the Judicial Registrar. However, it is more likely, in my opinion, that Mrs Reader has deliberately constructed a false version of what happened, at least as it relates to the detail of her closing the door and it being reopened by Mrs Edwards, which generally accords with Mrs Edward's account but with a gloss favourable to her. While I do not now view this evidence as propensity evidence of any real probative value, it does significantly bear upon Mrs Reader's credit. It raises a real issue about the weight to be attached to her denial of the conduct alleged against her.

I now consider the evidence of Mrs Sullivan. While it was led only to impeach the credit of another witness, it was led without objection. As it concerned false testimony in proceedings in this Court it was probably admissible, in any event, under s 106(1)(e) of the Evidence Act 1995 (Cth). It concerned what had been said by Mrs Kinnear on 17 December 1994. Mrs Sullivan was, of all the witnesses, the witness who markedly impressed me as endeavouring to answer truthfully questions put to her. I do not accept the submission made by the employer that this can be explained because she was the only person who did not give evidence before the Judicial Registrar. Mrs Sullivan is a Registered Nurse (Division 2). She presently works at Wyndham Lodge. She has been employed there for approximately 14 years, having gained her qualifications as a Registered Nurse in 1974. She gave evidence of recalling a conversation in which Mrs Kinnear said something. She could not, in her evidence-in-chief, recall what month or year the conversation took place, though it was after what she described as "Lee Reader's court case". She recalled Mrs Kinnear was talking about the court case and: "how bad it had been and she said that she lied in Court". Mrs Sullivan said that Mrs Kinnear had said she: "lied about when the incident forms were written". Mrs Sullivan went on to say that Mrs Kinnear had said how horrendous it had been in Court and that Mrs Kinnear then said:

"That she lied about where Mr - or something about when Mr Harrison's chair, who was sitting in it. I don't recall, I don't remember. It was something about his chair."

Mrs Sullivan then said she left the group. She later completed an incident report in relation to the conversation. It provides a description of the incident in the bottom half of the form:

"Carole Kinnear stated to staff that she had lied in Court about what had occurred on the day of C. Reader & Vera Bullard's incident. Carole stated that Stan Harrison was sitting in Vera's chair at the time of the incident but had said he wasn't in court."

Mrs Sullivan noted in the form that the names of witnesses included herself, B. Hoyn, T. Price, and L. Cooper.

During cross-examination, Mrs Sullivan said that she filled out the report in the shift after the incident. That may have been up to three days after the incident itself. Her explanation for not including in the report a reference to Mrs Kinnear saying she had lied about the time at which she filled in the incident report was that she wanted to alert the Board of the employer of what Mrs Kinnear was saying. That is, she had been lying, but she did not wish to "be reporting her greatly". What, in essence, she was saying was that she chose to report what she believed was the less damning of the two concessions made by Mrs Kinnear about having lied. While it is a curious approach for her to have taken, it was understandable in the circumstances and I accept her explanation. She wanted to expose Mrs Kinnear as admitting to not having been truthful but to leave it to the Board to explore the matter further if they thought it appropriate. Mrs Sullivan conceded in cross-examination that she had not been happy about Mrs Kinnear and Mrs Sweeting reporting Mrs Reader for an assault. However her evidence was not that she disagreed with Mrs Sweeting and Mrs Kinnear reporting Mrs Reader.

Did Mrs Reader assault Mrs Bullard?

To this point in these reasons, I have endeavoured to indicate, in the broad, the view I have taken of the evidence given by the various witnesses. I now turn to consider the first question posed by the order of the Full Court, namely whether Mrs Reader assaulted Mrs Bullard on 12 June 1994. As outlined at the beginning of these reasons, the employer has identified the assault as involving Mrs Reader slapping Mrs Bullard across the arm with an open hand, punching her in the back with closed fist, grabbing Mrs Bullard in a bear-hug, dragging her down the corridor to her room and throwing her into a chair.

Proof of the first element, the slapping of the arm, involves an acceptance of the oral account of Mrs Sweeting and/or her written account in the incident report and in the handwritten statement and rejection of the denial of Mrs Reader. Proof of the remaining elements, with one qualification, involves an acceptance of the oral account of Mrs Kinnear and/or her written account in the incident report and rejection of the denial of Mrs Reader. The qualification is the evidence of Dr Desmond which might be viewed as corroboration of the evidence of Mrs Kinnear about the punch in the back.

The allegation that a registered nurse of many years experience assaulted an elderly demented patient in the care of the nurse is a very serious one. It requires the employer to establish the evidentiary foundation of the allegation to a degree that leaves me sufficiently satisfied that it occurred as alleged having regards to the gravity of the allegation: see Briginshaw v Briginshaw (1938) 60 CLR 336.

I have already indicated that I doubt that Mrs Kinnear’s oral testimony was based on an ability to recall what had occurred. I could not be satisfied, on her oral testimony, that Mrs Reader punched Mrs Bullard and otherwise dealt with her in the way she described. There is, however, her written statement in the incident report and the evidence of Dr Desmond. When the incident report was tendered, Mrs Kinnear had given evidence that it was filled in on the public holiday, the day after the incident. If I had no doubt about the accuracy of her account in the incident report, that account when taken with the evidence of Dr Desmond, might provide evidence of sufficient weight to satisfy me that Mrs Reader punched Mrs Bullard and otherwise dealt with her in the way described in the incident report.

However I do have reservations about the contents of the incident report, given that I accept the evidence of Mrs Sullivan that Mrs Kinnear said in December 1994 that she had lied in Court about when the incident report was written. It does not emerge from the evidence in these proceedings what her evidence had been before the Judicial Registrar. Nonetheless Mrs Kinnear's admission that she lied about when the report was prepared casts doubt not only on her evidence in these proceedings about when it was made but on the report more generally. That it was necessary to lie about when the report was made suggests, in all probability, Mrs Kinnear may have had some doubts about the reliability of the incident report. It may have been necessary to lie about when it was made to make it appear more reliable.

I now consider the evidence of Dr Desmond which also bears upon the reliability of the incident report. It is to be remembered that the written report of Mrs Kinnear says that Mrs Kinnear saw Mrs Reader "hit Vera Bullard in the middle of the back". The potentially corroborative evidence of Dr Desmond was that Mrs Bullard was tender in the T4 to T6 region of the thoracic spine, that is, between her shoulder blades, which Dr Desmond described as the "high back." While this might be described as the middle of the back viewing it from side to side, that expression is not an entirely apt description, in my opinion, of the area between the shoulder blades.

More significant, however, is the evidence of Dr Desmond that the tenderness, while consistent with a punch, is also consistent with a fall. Viewing the evidence as a whole, Mrs Bullard was, in my view, plainly a person prone to acts of physical aggression and violence. The exhibit containing Dr Desmond's written report comes from what appears to be a file containing notes prepared over time concerning Mrs Bullard. It contains a number of references to acts of violence or aggression of Mrs Bullard. For example, in an entry on 30 June 1994 it is recorded that she started head butting staff during her shower. I cannot discount the possibility that the tenderness on Mrs Bullard's upper back was caused by her falling or striking something during a period of physical aggression, or otherwise. This latter possibility was conceded by Dr Desmond. Thus the evidence of Dr Desmond fails to provide sufficient support for the account in the written report of Mrs Kinnear that she saw Mrs Reader punch Mrs Bullard.

Further doubt that the punch was thrown is the absence of any explanation as to why Mrs Reader would punch Mrs Bullard in the circumstances. On Mrs Kinnear's account, oral or written, nothing occurred which would have provoked Mrs Reader to punch Mrs Bullard. On Mrs Reader's account, there was, namely the punch she received from Mrs Bullard. But Mrs Reader’s account is coupled with a denial of her having, in turn, punched Mrs Bullard.

There is also the question of whether Mrs Reader dragged Mrs Bullard to her room and threw her in her chair. Mrs Bullard throwing food on the floor might have precipitated or provoked that response by Mrs Reader. There is also the statement of Mrs Sweeting in the incident report that she saw Mrs Reader run down the passage and yell at Mrs Bullard to go to her room. Even accepting that what Mrs Sweeting recorded is what happened, the running and yelling together with the food throwing is insufficient to satisfy me that the dragging and throwing into the chair occurred in the way described by Mrs Kinnear in her statement, having regard to the caution with which I believe Mrs Kinnear's statement in her incident report should be approached. Mrs Reader concedes she took hold of Mrs Bullard and took her backwards to her room and sat her in her chair. The colourable gloss Mrs Kinnear places on this conduct in the incident report is that it involved Mrs Reader "drag(ging)" Mrs Bullard and "throw(ing) her" in her chair. However I am not satisfied that this should be accepted as an accurate description on what occurred.

I have already indicated that Mrs Sweeting's oral testimony has to be approached with caution. Ultimately proof of the allegation that Mrs Reader slapped Mrs Bullard depends, in substantial part, on whether I accept the account in the incident report completed by Mrs Sweeting the following day as being accurate and of sufficient weight to satisfy me in the way discussed in Briginshaw (supra). However, I do not reject Mrs Sweeting’s oral evidence in its entirety. In my opinion, the evidence that I earlier indicated I did not accept or described as disingenuous was probably given because Mrs Sweeting felt the need, either consciously or unconsciously, to provide as much evidence as she could to damn Mrs Reader, given that the latter’s termination, and ultimately these proceedings, were based, in part, on a complaint by her on 13 June 1994.

I should briefly say something about the admission of the incident report. Section 55 of the Evidence Act 1995 (Cth) posits a test of whether evidence is relevant. It is whether it could, if accepted, rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact is issue. A person may see, or otherwise experience, an event and state shortly after what they saw or experienced. It may be a statement made orally or one made in writing. Both are forms of communication.

The admissibility of evidence of a prior consistent statement of a witness about an event in respect of which evidence can or might be given is, at common law, an issue of some complexity. However s 64 of the Evidence Act, 1995 (Cth) permits the admission of such evidence, notwithstanding that it was hearsay of the type referred to in s 59. That is, a previous representation by a person, intended to prove the existence of a fact that the person intended to assert by the representation.

Section 64 addresses a number of permutations. Relevantly, it provides that s 59 does not preclude the reception of evidence in civil proceedings of a representation by a person called to give evidence if the asserted fact to which the representation was made was fresh in the memory of the person who made the representation. "Representation" is defined in the dictionary as including an express representation in writing. If the representation is in writing, the document containing the representation must not be tendered before the conclusion of the examination-in-chief of the person who made it, unless leave is given: see s 64(4).

I was satisfied that the incident report made by Mrs Sweeting contained a representation and that the asserted fact, relevantly the slap on the arm, was fresh in her memory. The report was completed the day after the incident and there was no evidence to suggest that Mrs Sweeting's memory of the event diminished in that period. Accordingly, it was admissible having regard to s 64, notwithstanding the provisions of s 59.

Section 64 mirrors, in some respects, s 38 of the Evidence Act 1938 (UK) which renders admissible a document containing a statement tending to establish a fact about which direct oral evidence might be given. Section 38 has been replicated in evidence legislation in Australia. It is necessary for the maker of the statement to have personal knowledge of the matters dealt with by the statement, and the weight, if any, to be attached to the statement depends on matters including whether it was made contemporaneously with the event it describes. In Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75, the Court of Appeal considered the admissibility of a written statement made three to four weeks after an industrial accident. Admissibility depended on a provision of the Evidence Act 1938 (UK) which is not presently relevant. However Denning LJ observed at 78:

"Statements made by witnesses, within a reasonable time after the accident, in writing and signed, should be generally admissible. They are usually of far more weight than evidence given years after the event."

While qualifications can be made to this statement, and are evident in the debate about the extent to which statements might be viewed as forming part of the res gestae: see for example, Vocisano v Vocisano (1974) 130 CLR 267 at 273, it nonetheless represents, in my opinion, an unexceptionable statement.

A significant issue in these proceedings is the extent to which the written statement of Mrs Sweeting in the incident report can be viewed as a reliable account, particularly given the denial by Mrs Reader of having hit Mrs Bullard.

Counsel for Mrs Reader accepted that Mrs Sweeting and Mrs Kinnear did not set about making up an incident to attack Mrs Reader. Counsel did not suggest deliberate concoction by them for an ulterior purpose. Rather, it was submitted on behalf of Mrs Reader that even though Mrs Sweeting and Mrs Kinnear may have genuinely believed they saw a slap or a punch, what they saw was events as Mrs Reader described them. However, in relation to Mrs Sweeting I consider it unlikely that this was so. Plainly she saw something. She recorded in writing, within a day, that it was a slap on the arm. While I accept that Mrs Sweeting discussed the incident with Mrs Price and probably other employees at the tea break, and may also have done so the following day, I do not accept, as suggested by counsel for Mrs Reader, that such discussions as she had transformed a fleeting impression of action that may have been a slap into a firm conviction that she had definitely seen Mrs Reader slap Mrs Bullard.

Mrs Reader denies she slapped Mrs Bullard, though she has an interest in making the denial. As I discussed earlier, by the conclusion of Mrs Reader's evidence I had real doubts about whether, in relation to some of her evidence, she was giving a truthful account of what occurred. It is probable she was twice slapped on the face by Mrs Bullard when she went to adjust her dressing gown. Not only does Mrs Reader say so, but it is consistent with what Mrs Sweeting wrote in the handwritten statement which is in evidence. I find she was. However it also provides an explanation of why Mrs Reader reacted in the way she did if she did slap Mrs Bullard.

Mrs Reader bore the ultimate responsibility of her shift in managing and caring for all patients, including Mrs Bullard who could be persistently aggressive and physically violent. It would be, I have no doubt, a difficult, demanding and, at times, emotionally taxing job. A slap to the face can be very confronting and offensive, often more so than a slap to any other part of the body. A second slap to the face would ordinarily compound the effect of the first. Two slaps at the instance of someone under your care who you are going to assist could precipitate a reaction which took the form of a physical response. While in the context of nursing an aged, demented patient it is an unacceptable response, it would not be an entirely unexpected one. It is, in my opinion, an entirely plausible that Mrs Reader reacted in this way when slapped twice on the face by Mrs Bullard.

One other matter has influenced my conclusion that Mrs Sweeting saw Mrs Reader slap Mrs Bullard. Mrs Sweeting was so affected by the incident that when Mrs Reader returned to Wyndham Lodge she resigned and left nursing. It also upset her sufficiently on the day to cause her to cry during the tea break. This part of her oral evidence I accept. Indeed the magnitude of the distress she suffered was probably manifest in the way she comparatively constantly broke down when giving evidence. There may be various reasons for her behaviour in court. It may be explained by the trauma of having to give evidence and give it a second time, but I doubt that this would explain it entirely. Her behaviour in court is consistent with her evidence about why she left nursing. It is also not the reaction of someone who saw something, potentially distressing, and was uncertain about what she saw.

The employer has not proved Mrs Reader punched Mrs Bullard, grabbed her in a bear-hug, dragged her to her room and threw her into a chair. As to whether Mrs Reader slapped Mrs Bullard, I have reached the degree of satisfaction discussed in Briginshaw (supra). I find that on 12 June 1994, Mrs Reader slapped Mrs Bullard on the arm. Thus, the answer to the question posed by the order of the Full Court is that, in that respect only, Mrs Reader assaulted Mrs Bullard.

Counsel for Mrs Reader conceded that if this finding was made, the employer would have established a valid reason of the type referred to in s 170DE(1). It is for this reason that the potential difficulty concerning the terms of the Full Court's order I adverted to at the outset has proved to be academic.

Remedy for contravention of s 170DC

It is now necessary to consider what remedy, if any, should flow from the established contravention of s 170DC. The following extract at (1994) 64 IR 83 (supra) at 91, from the judgment of Marshall J, summarises the findings of fact founding the ultimate finding that there had been a contravention of s 170DC:

"At no stage was it ever put to the applicant at the interview that she had punched the resident in the back, slapped her on the arm, dragged her into a room or pushed her into a chair. She was not afforded an opportunity to view the doctor's report which was allegedly in the hands of Ms Canterbury but never tendered into evidence. At no stage was she shown anything in writing about the "incident" from "the witnesses".

She was not given the opportunity of having a union representative in attendance at the meeting."

and later at 92:

"In the circumstances of this case no such opportunity was afforded to the applicant. As discussed elsewhere, none of the essential allegations were put to her. She was also not appraised of what was in the statements of the witnesses or the doctor's report. She was called in for "a discussion" and on arriving for the meeting, found her employment in peril. She was not invited to have her union representative present. She did not know it but at the very time she was called on to give her version of the incident, her termination letter had been written as had her termination cheque."

The reference to "the interview" appears to be a reference to a interview with Mrs Sargent, Director of Nursing, and Mrs Canterbury, President of the Management Committee of the employer.

Counsel for Mrs Reader conceded that if I concluded Mrs Reader had assaulted a resident then any remedy that might flow from the contravention of s 170DC would be limited to compensation. No detailed submissions were made as to what that compensation might be. The position of the employer was that if the termination of Mrs Reader's employment was only in contravention of s 170DC then no compensation should be awarded. That was because Mrs Reader had gained income for a period of approximately seven months employment resulting from the implementation of the orders of Marshall J of 4 October 1995.

It is to be recalled that a concession was made on behalf of Mrs Reader that if a finding was made that Mrs Reader slapped Mrs Bullard, then the employer had a valid reason for terminating Mrs Reader's employment because of her conduct. It would be putting it too highly, in my opinion, to say that implicit in this concession is the further concession that if Mrs Canterbury had been satisfied, after compliance with s 170DC, that Mrs Reader had slapped Mrs Bullard, she would inevitably have terminated Mrs Reader's employment. It would not, however, be unreasonable to treat the concession as an acknowledgment that it is probable that would have been the result. In any event, I view it as the probable, though not the inevitable, outcome. Mrs Canterbury may have viewed Mrs Reader's response of slapping Mrs Bullard as understandable, if not acceptable, given that she had just been slapped twice on the face by Mrs Bullard. Mrs Canterbury, if this approach had been adopted, may have admonished Mrs Reader but not terminated her employment.

In assessing the remedy for an established breach of s 170DC, it is appropriate to consider what would have been likely to occur if the breach had not occurred: se Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at 62. In the present case, it is likely that Mrs Reader's employment would have been terminated. It is only a more remote possibility that it would not have been. Had it not been, her employment would have continued. While it is not likely that her employment would have continued, I must consider the question of compensation on the basis that it might have. Had it continued, she would have earned income. This she was able to do, albeit after a break, by virtue of the order of Marshall J. However that was not ongoing employment of the type that she would have enjoyed had her employment not been terminated. Also, had her employment not been terminated, she would not have suffered the distress and indignity associated with the termination. This is compensible: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, 13 December 1996). While there is no direct evidence of Mrs Reader's reaction to her termination, I consider it highly improbable that it did not cause her distress, given her age (55) and that she had been employed for almost seven years at Wyndham Lodge. I infer it did. I propose to award Mrs Reader $4,000 compensation. This can be offset against the $20,281.09 paid to her pursuant to the order of Marshall J of 12 October 1995 which the Full Court set aside.

I certify that this and the preceding sixty-three (63) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Alexandra George

Dated: 26 March 1997

APPEARANCES

Counsel for the Applicant: Mr I Fehring

Solicitor for the Applicant: Wilson Potter Nicholson

Counsel for the Respondent: Ms T Cirkovic

Solicitor for the Respondent: Tanya Cirkovic & Associates

Dates of Hearing: 17, 18, 19, 20, 24 February 1997

Date of Judgment: 26 March 1997

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Reader v Wyndham Lodge Nursing Home Inc [1997] IRCA 91

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