Skinner v Royal Children's Hospital

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-03489

NOEL SKINNER	Plaintiff
v
ROYAL CHILDREN'S HOSPITAL	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2020
DATE OF JUDGMENT:	3 September 2020
CASE MAY BE CITED AS:	Skinner v Royal Children’s Hospital
MEDIUM NEUTRAL CITATION:	[2020] VCC 1359

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Negligence – Work Injury – Duty of Care – Content of Duty – Breach of Duty – Conflicting Duties – Psychological Injury – Physical Injury – Capacity for Employment - Damages
Legislation Cited: Mental Health Act 2014 (Vic); Wrongs Act 1958 (Vic)
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220; Jones v Dunkel (1959) 101 CLR 298; Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; Strong v Woolworths Ltd (2012) 246 CLR 182; Borazio v State of Victoria [2015] VSCA 131; Sabatino v The State of New South Wales [2001] NSWCA 380; Sullivan v Moody (2001) 207 CLR 562; The Council of the Shire of Wyong v Shirt & Ors (1980) 46 CLR 40

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Stephen McCredie with Ms S Bailey	Zaparas Lawyers
For the Defendant	Mr Ian McDonald SC with Ms C Kusiak	Hall & Wilcox

HIS HONOUR:

1Over nineteen months, Noel Skinner was subjected to three assaults while working as a psychiatric nurse at the Royal Children’s Hospital (“RCH”). In the first incident on 15 June 2014, he was struck with a metal chair by Patient K. In the second, on 2 December 2015, he was kneed and punched in an emergency assessment room. And in the third, on 10 January 2016, he was rugby tackled by Patient DB.
2Whether the first and third incidents occurred in negligent circumstances formed the central component of the trial. In respect of the first incident, the factual issues can be framed in the following way:
(a) should Patient K have been removed from the ward prior to the first incident?; and
(b) should steel chairs have been removed from the ward prior to the first incident?
3In respect of the third incident, the essential factual issue can be framed as whether or not the nursing staff complied with the RCH policy for high risk High Dependency Unit (HDU) patients on 10 January 2016, which required visual observation at all times.
4If those questions are answered in favour of Mr Skinner, then issues of causation and damage arise.
5I will deal with the factual circumstances and issues of breach of duty first.

Brief relevant factual background
6Mr Skinner was born on 12 December 1959. He trained as a psychiatric nurse from 1982 to 1985 and has worked in that field since that time. In 1994, he was assaulted while working at Pentridge Prison. He took no time off work. He left the prison in 1995, after a workplace disagreement.[1] While he admitted to seeing a psychiatrist, he did not have any substantial treatment. Then, while working for the Midwest CATT team (a crisis assessment team dealing with mental health), he experienced anxiety, saw a psychiatrist and was put onto Sertraline for a short period. He ultimately left. He made a claim in respect of his treatment by management and received some compensation. At that point, any relevant past medical history ends. In 2011, Mr Skinner began working at the RCH as a psychiatric nurse. He worked on the nurse bank, which was essentially a group of nurses called at short notice to fill shifts. Mr Skinner gave evidence he only worked filling psychiatric unit shifts and preferred weekend work.
[1]Transcript (“T”) 19 Line (“L”) 18-29
7Psychiatric nursing occurred predominantly, and relevantly, in the Banskia Ward at the RCH. This ward is devoted to the psychiatric care of children aged twelve to eighteen years. The Banskia Ward is located on Level 2 of the RCH campus on Flemington Road in Melbourne. The Banskia Ward is divided into two halves, separated by a secure airlock and door. At one end is the low-dependency unit (“LDU”). At the other end is the HDU. Mr Skinner worked in both areas. I will return in more detail to the layout of these rooms when considering each of the incidents. Mr Skinner also worked in the Emergency Department as a psychiatric consultant liaison nurse, performing assessments and admissions. This work was done at the ground level of the same building. It housed what are termed “assessment rooms”, where patients were taken for initial assessment and screening.
8In the relevant period from June 2014 to January 2016, I find that Mr Skinner worked as an on-call bank psychiatric nurse. He worked in the LDU, HDU and Emergency Department of the RCH.

The first incident 15 June 2014 – Patient K
9The first incident has been broadly described above in the introduction. It is perhaps the most contentious of the incidents. Mr Skinner contends that Patient K’s mental state was escalating and she became an increasingly physical risk to others during the morning of 15 June 2014.[2] Broadly, he asserts that after this was reported to the Associate Nurse Unit Manager (“ANUM”), Mr Daniel Darmanin, Patient K should have been moved to the HDU. He further alleges that the steel blue chairs present in the LDU at that time should not have been present as they could be weaponised and posed a risk to staff.[3] He argues they should not have been present in the common area and should have been removed prior to the incident as:
(a)   there had been complaints about them being a danger to staff; and
(b)   they were a risk to the safety of staff if a patient decided to use one in assaulting a staff member.[4]
[2]T53, L29-T54, L4
[3]Plaintiff’s opening at page 3, paragraph 2.2.1
[4]T773-774
10The Defendant’s argument in response was that Nurse Darmanin had made a “judgement call” to keep Patient K in the LDU.[5] Essentially, the Defendant argued that while that “call” might in hindsight be wrong, prospectively looked at, it was not wrong. A further argument was put by the Defendant that even if the “call” was incorrect, Mr Skinner then needed to lead evidence that such a transfer would have occurred before the time when the assault took place. Essentially, this was an argument of causation. The Defendant’s argument went that as no evidence had been led by Mr Skinner of the time taken to effect assessment and transfer, there was no evidence to make the finding that even if Nurse Darmanin had agreed to transfer Patient K, it would have been completed prior to the assault occurring.
[5]Defendant’s opening page 2, paragraph [10]
11As to the issue of the steel blue chairs, the Defendant’s outline simply noted they were removed after the incident.
12Something first must be said about the layout of the LDU. It can be clearly seen in Exhibit P1. This shows a marking of where Mr Skinner was when struck. In a broad sweep, the photo shows a large central space with carpet. To the left are a series of waist-high windows indicating the office where Nurse Darmanin was. Then, proceeding along that left-hand wall, are doors leading off to various rooms. At the far end of the room are some multi-coloured flags. Underneath these, and to the right, is a doorway leading to the art room/classroom. There is then a phone seen with a chair in front of it. The chair seen is in roughly the same position as the steel chair was prior to it being used to strike Mr Skinner. The cross shown on Exhibit P1 depicts the location Mr Skinner was standing in when struck by Patient K about the back of the left shoulder and neck.
13On 4 June 2014,[6] Patient K was admitted to the RCH Banskia Ward.[7] At that time, she was scored as Low on the Risk Assessment Scale and allocated to the LDU.[8] Mr Skinner’s evidence was that Patient K was a volatile patient with a history of assaulting other patients.[9] Nurse Darmanin stated that risk assessment should be done daily for patients as such Patient K.[10] He made the point that such risk assessments do not need to be in the form as seen on the admission document.[11] No clinical notes of further risk assessments between the admission date of 4 June 2014 and 15 June 2014 were produced by the hospital at all. Nurse Darmanin was at pains to point out that it was not the ANUM’s responsibility to ensure such risk assessments were completed for patients. There was then no further evidence that risk assessments were actually performed for Patient K in the period just specified. There was no explanation as to the absence of such risk assessments.
[6]Court Book (“CB”) 649
[7]T551
[8]T514, L5, CB 650
[9]T53
[10]T519, L1-4, T669
[11]CB 649
14It will be recalled that the evidence of Mr Skinner was that Patient K was in fact a HDU patient being managed on the LDU ward with close nursing. There is some doubt about this given the Risk Assessment and the evidence of Nurse Darmanin. The Risk Assessment, though done some eleven days prior to the event, clearly shows she was a low risk and Nurse Darmanin’s evidence was that she was “relatively stable” with no “heightened risk towards herself of (sic) anyone else”.[12]
[12]T518, L22-25
15That neither party tendered any records for Patient K from 4 June 2014 to 15 June 2014 is curious. Nurse Darmanin was unable to recall anything of Patient K’s admission prior to 15 June 2014.[13] This extended to whether she was nursed in the LDU or HDU.[14] It extended to being unable to recall if she had assaulted staff at the RCH prior to 15 June 2014.[15]
[13]T534, L7-8
[14]T534-535
[15]T536, L3-6
16On this point, then, the evidence of Mr Skinner stands alone: That prior to 15 June 2014, Patient K had a history of aggression and assaulting staff. Further, that after admission, she had been in the HDU but was then sent to the LDU under close attention with Nurse Penelope Keys.[16]
[16]T540, L31-T541
17Nurse Darmanin seemed to accept that last proposition, at least. It is a factor which goes strongly towards accepting Mr Skinner’s version of events. This is further supported by the fact that while Nurse Darmanin certainly gave long answers, in actual fact, his memory of events was extremely limited. He could not recall much of Nurse Keys’ attendance, why risk assessments were not completed for Patient K during his shift, or the nursing arrangement for Patient K.
18The Defendant sought to impugn Mr Skinner’s version of events on the basis that his factual recounting of events in the hours around the time of the assault were improbable. The Defendant then argued backwards that Mr Skinner’s version of Patient K having a history of assault and being an HDU patient was similarly improbable. In my view, nothing much turns on this argument. While the Defendant mounted an attack on the positioning of Mr Skinner at the time of the assault, the failure to corroborate his version of events with evidence of Nurse Keys and the fact the incident report makes no mention of the escalation in Patient K’s state prior to the incident, none of these matters throw sufficient doubt on Mr Skinner’s evidence to allow me to set it aside. First, the positioning of Mr Skinner as he described it at the time of the assault is undoubtedly difficult to understand. That is, he had his back to the main area while holding the classroom door open. This was said to be illogical as:
(a)   children would have to pass under his arm to leave the room; and
(b)   he then had his back to Patient K who, in his view, was escalating at the time he left her.
19The answer to these matters lies in the following facts. First, Mr Skinner was the nurse in charge of the patients in the classroom. He had to take the lead and show the patients out. As a common courtesy, he chose to open the door and hold it. Second, it was appropriate as the nurse in charge of that cohort that he would be the one to enter into the common area before the others. Third, he had been told by Nurse Darmanin that Patient K was suitable for the LDU. And, last, he no doubt thought the situation was likely to have been de-escalated since the removing of all other patients from the LDU while Patient K was being cared for by Nurse Keys for an hour. To the extent Nurse Darmanin considered that the separation of all other patients from Patient K for an hour was problematic in theory, he had no recall of conversations about this course being undertaken by Mr Skinner in order to de-escalate Patient K’s condition. Given it is undoubted that the incident occurred while a group of patients were exiting the classroom, not much turns on this in any event.
20The Defendant strongly argued that there was no conversation between Mr Skinner and Nurse Darmanin to the effect that Mr Skinner was taking the other patients to the classroom in order to protect them and reduce the stimulus for Patient K in an effort to de-escalate her condition. The Defendant argued that Mr Skinner could not take such an action without letting the ANUM know of the situation. As has been set out above, Nurse Darmanin had very little recollection of the events of that morning. He could not recall conversations with Mr Skinner, Nurse Keys or, in fact, who had responsibility for the close nursing attention of Patient K. He did not deny such conversations occurred, he simply had no recall. While I formed the view that Nurse Darmanin was attempting to be helpful, his answers were discursive, not to the point, and as his evidence went on it became clear he had very little recall of events of the day itself. The fact that he was the ANUM in charge and yet no risk assessments were performed, seems to indicate a real lack of focus and attention to detail that morning. Further, the fact that one of the nurses under his charge on this day was assaulted with a steel chair and yet he had no real recollection of these many matters supports my view that Mr Skinner’s evidence ought be accepted. In those circumstances, I accept Mr Skinner’s evidence and find that he took the cohort of students to the classroom to protect them from Patient K’s behaviour and to de-escalate Patient K’s situation. I further find that Mr Skinner informed Nurse Darmanin of these matters at around 11 o’clock, when he took the cohort to the classroom.
21Something must also be said about the absence of evidence from Nurse Keys. She was the relevant nurse dealing with patients in the LDU on the morning. In fact, her evidence was critical given that she was the specific nurse charged with Patient K’s care. She was not called to give evidence in somewhat unusual circumstances. Those circumstances are set out in exhibit P7, which is the affidavit of Ms Nemra Raffoul, sworn 4 August 2020. That affidavit makes clear that Mr Skinner made every effort to secure the attendance of Nurse Keys and counsel even had conference with her the night before she was to give evidence. Then, without any warning, Nurse Keys decided not to give evidence. Up to that point, Mr Skinner’s solicitors had taken all necessary steps to get in contact with Nurse Keys and ensure that she was available for the trial date and able to give evidence. It was only just prior to trial that she advised them that she was going to be in Papua New Guinea at the time of giving her evidence. Given that this trial was proceeding remotely, her location was not a difficulty, as she would have access to internet and the Zoom platform, utilised for the trial. However, by reason of being in Papua New Guinea, she was not able to be served with a subpoena quickly to compel her attendance once she announced she was unwilling to attend to give evidence. I find that this is not the fault of Mr Skinner, and that all reasonable attempts were made to have Nurse Keys attend. Further, it could not be reasonably said that Nurse Keys was in Mr Skinner’s camp for the purposes of giving evidence, given that she had been a staff member at the Royal Children’s Hospital and had not made a statement one way or another. Consequently, I do not consider I am bound to make or take an inference in accordance with Jones v Dunkel[17] that the evidence of Nurse Keyes would not have assisted Mr Skinner’s case.
[17](1959) 101 CLR 298
22At this point, I summarise my findings as to the situation as at about 11:00am on 15 June 2014. I find that prior to the incident, Patient K had a history of assaulting staff, had been admitted to Banskia Ward and been in HDU for some period, but was then moved to the LDU with close supervision by Nurse Keys. At just before 11:00am Mr Skinner became concerned by Patient K’s behaviours and spoke to Nurse Darmanin. He did not ask Nurse Darmanin that Patient K be moved to HDU or re-assessed for such a transfer to take place. Mr Skinner then took the remaining cohort of patients to the LDU classroom for about 1 hour, from 11.00am to 12.00pm. Patient K was left in the common area of the LDU under the direct care of Nurse Keys.
23Moving on then to matters after 11.00am on 15 June 2014. As Nurse Darmanin explained, to move a patient from one area to another requires data gathering and analysis by the treating team.[18] This is in keeping with the Mental Health Act2014 (Vic) (“the Mental Health Act”), s10, and described by Nurse Darmanin as being the least restrictive approach, that is, keeping patients in the LDU save for when the risks outweigh the benefits. This is because the HDU is a much more restrictive environment. Here, there is no evidence of Nurse Keys performing a further risk assessment or seeking involvement from the care team to re-evaluate Patient K’s placement. This is also in light of the evidence of Mr Skinner that he made the clinical decision around 11.00am to move the other children into the classroom to remove stimuli from around Patient K in an attempt to allow Patient K to de-escalate. Whether this was successful is not clear. On one view and in hindsight, it may be thought that it clearly was not, given Patient K assaulted Mr Skinner on his emergence from the classroom. However, that is a matter of retrospective reconstruction. Against this thesis are the following factors. First, the lack of any risk assessment being done that morning seems to indicate that no one was concerned enough by Patient K’s state to complete one. Though it must be said that there seems a complete lack of risk assessments done in respect of Patient K at all. Similarly, there is no evidence of the involvement of any of the clinicians or Nurse Darmanin in the planning for a transfer to HDU. Further, the fact that Mr Skinner himself did not say to Nurse Darmanin he thought that Patient K should be transferred. In addition, there is no evidence criticising the decision to leave Patient K in the LDU. That was to be the subject of the expert evidence of Ms Eunice Gribbin, however, such evidence was ruled inadmissible.[19]
[18]T517, L8
[19]See my Ruling as to Ms Gribbin’s evidence.
24As such, Mr Skinner’s claim that the failure to move Patient K to the HDU prior to the assault was negligent must fail. Even if it can be accepted that Mr Skinner raised concerns about Patient K’s behaviour, there is no evidence that in his clinical judgement he sought Patient K’s removal to the HDU. Such could be expected from a well-experienced psychiatric nurse. There was no risk assessment process that indicated such a transfer should occur. There is no expert evidence to suggest it should have been done and, critically, there is no evidence to suggest how Patient K progressed during the time Mr Skinner was in the classroom.

25Even if I were wrong about that and at around 10.30am – 11.00am Mr Skinner’s concerns were considered sufficient for Nurse Darmanin to begin contemplating the move of Patient K to the HDU, there is simply no evidence to suggest when this could have been done. This is a fundamental causation problem for Mr Skinner. Mr McCredie put it as simply as being that Patient K would have been moved prior to 12.00pm, when the assault occurred. However, this does not take into account the process of risk assessment being carried out for Patient K, the availability of ward space in the HDU, or the availability of the consultant psychiatrist or psychiatric registrar to attend and assist with making the plan to move Patient K.
26The test for causation that is to be applied is that established by the Wrongs Act 1958 (Vic) at s. 51(1). That breaks the process of assessing causation into two limbs. First the determination of factual causation and next the scope of liability. Here the issue raised by Ms McCredie falls squarely for determination in assessing factual causation.
27In closing, Mr McCredie made the point that it was for the Defendant to counter the Plaintiff’s argument by the presentation of evidence which suggested the regular transfer time would be in excess of one-and-a-half hours.
28Such a proposition would run counter to the onus of proof Mr Skinner is required to fulfil in making out his cause of action. The test of causation that Mr Skinner was required to meet is set out in Strong at [32]:
“The appellant was required to prove on the balance of probabilities that Woolworth’s negligence was a necessary condition of her harm….Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.”[20]
[20]Strong v Woolworths Ltd (2012) 246 CLR 182 at [32], In the Victorian context Borazio v State of Victoria [2015] VSCA 131 referred to Strong with approval as setting out the test for causation
29That the onus remains on Mr Skinner is undoubted.[21] In Strong, the injured Plaintiff made good the proof of the causal link by consideration of the probabilities in circumstances were the evidence did not disclose exactly when an event – the chip going onto the ground - occurred. That is not this case. Here, Mr Skinner led no evidence of the usual time taken as to the transfer of the patient in the position of Patient K. All that could be said was that Nurse Darmanin gave evidence of the steps that had to be taken in order to achieve such a transfer. There is no evidence on which to base an inference (or probabilistic reasoning) that the transfer of Patient K would have occurred between the time that Mr Skinner told Nurse Darmanin of his concerns and the time of the assault.[22]
[21]Strong v Woolworths Ltd (2012) 246 CLR 182 at [34]. Mason P said in Sabatino v The State of New South Wales [2001] NSWCA 380 at [59]: “… Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission.”
[22]See also Holloway v McFeeters (1956) 94 CLR 470 at 480
30I turn then to the second limb of the argument of Mr Skinner in respect to the first incident, namely that the blue steel chair should not have been located in the common area of the LDU at all as of 15 June 2014. In assessing this matter, it must be borne steadily in mind that the duty imposed on an employer is:
“… If there is a real risk of injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards … .”[23]
(Footnote omitted.)
[23]Czatyrko v Edith Cowan University (2005) 214 ALR 349 at paragraph [12]
31While that much can be agreed, the content of that duty is bound closely to the proper identification of the risk which materialised.[24] It is only with the correct identification of the risk is it possible to assess what a reasonable response to that risk would be.[25]
[24]Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 (“Dederer”) at paragraph [59]
[25]Ibid, Dederer
32The formulation of the risk is that which focuses on the true source of potential injury.[26] Such a formulation cannot be confined to the precise set of circumstances in which Mr Skinner was injured. Rather, what must be reasonably foreseen is the nature of the particular harm that occurred or, more specifically, the circumstances in which that harm occurred.[27]
[26]Ibid, Dederer, at paragraph [60]
[27]Erickson v Bagley [2015] VSCA 220 at paragraph [33]
33Contextually, the LDU is a place that is meant to be similar to a school setting which is focused on being similar to a general ward for therapeutic reasons.[28] In keeping with the Mental Health Act, it is geared towards recovery and the least restrictive setting for care as is possible. The High Court has repeatedly made the point that at the intersection of the duty imposed on health practitioners treating mental health patients, significant weight must be given to the Mental Health Act and care in the least restrictive manner.[29]
[28]T566-567
[29]See Hunter and New England Local Health District v McKenna (2014) 253 CLR 270 (“McKenna”)
34Nurse Darmanin made this point as well.[30] It would go too far to say a duty does not arise because of inconsistent duties, as in McKenna,[31] however the context of the setting of the alleged negligence bears upon the scope of the duty.[32] Here, a duty is admitted but the scope of the duty is limited by the principles of the Mental Health Act. It is also to be borne in mind that the imposition of the duty does require some assessment of the conflicting responsibilities that the imposition of the duty has on the duty holder. [33]
[30]T566
[31](2014) 253 CLR 270 at 279 [18]
[32]See Sullivan v Moody (2001) 207 CLR 562 at 579-580. The Court there said “different classes of cases give rise to different problems in determining the existence and nature or scope, of a duty of care…..Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships”
[33]The Council of the Shire of Wyong v Shirt & Ors (1980) 46 CLR 40 at [47-48]
35Further, there had been no previous incidents involving these chairs as weapons as I have found. It is easy after the event to argue that if chairs had been replaced with foam or soft chairs then injury could not have been sustained as it was. However, viewing the matter prospectively, bearing in mind the therapeutic setting the LDU is seeking to project, it cannot be said the chairs were inappropriate. If that was so, then items such as pens, pencils and paintbrushes, which all have a therapeutic use within the LDU and which also could be used as stabbing implements, would also have to be removed. Each of those normal classroom items are far more likely to be used in an assault given their size, weight and ease of use, than the heavier and more unwieldly steel-frame blue chairs.
36Essentially, the LDU would then resemble the HDU. That would rob the LDU of one of its core function.
37In these circumstances, I do not uphold the second limb of Mr Skinner’s argument and I find it was not a breach of the RCH’s duty to have the blue steel-frame chairs present in the LDU.

The Second Incident - 2 December 2015
38At the outset of the trial, and even after the close of the Defendant’s case, Mr Skinner maintained the position that on 2 December 2015 he was assaulted in the assessment room in the Emergency Department in negligent circumstances, that it was causative of injury and, further, that it resulted in loss and damage. After the close of the Defendant’s case, but prior to final submissions, Mr Skinner abandoned this position. He argued that while this second assault did occur, it was not in negligent circumstances. A further Amended Statement of Claim was filed to this effect.

The Third Incident - 10 January 2016 – Patient DB
39The third incident occurred on 10 January 2016. It involved Patient DB who “rugby tackled” Mr Skinner at about 10.00am in the HDU. Mr Skinner contended that this third incident occurred by reason of the failure of the RCH to comply with its own guidelines as to how a patient rated high risk and placed in the HDU was to be observed. Specifically, he argued that the RCH policy required constant line-of-sight observation. To the contrary, the RCH argued that, in practice, line of sight did not extend to when patients went to the toilet. To understand the parameters of the debate, something first must be said about Patient DB, secondly, the nursing arrangements in the HDU on 10 January 2016,thirdly, the layout of the HDU and lastly, the incident itself.
40Patient DB was admitted to the HDU on 1 January 2016 with a first episode of psychosis.[34] The risk of violence to himself and others was rated as 2/4, as was his suicide risk.[35] At that time he was deemed high risk and to be placed in HDU with appropriate nursing, which required two staff to one patient. Patient DB was about 17 years of age and was a male. Such risk assessment was confirmed the next day by the Registrar’s assessment. There is then limited material to assess his course over the next week, but by 9 January 2016, Nurse Helga Reinal, who was called to give evidence and explain her notes, had recorded that at 13:50 hours on 9 January 2016, Patient DB had been prescribed Olanzepine to the maximum dose. This is a sedative. It was significant that over nine days Patient DB had remained in a state where such strong sedation was required and he remained in the HDU with a high-risk rating. This is confirmed by Nurse Reinal’s note at CB 668, that Patient DB was a high-risk ICA (otherwise known as HDU) patient requiring two staff. Immediately afterward at 14:30 hours, nursing notes record that he became agitated, was seeking discharge and was “increasingly distressed and agitated father left … unable to de-escalate … increasingly threatening and hostile towards staff, grabbing staff …”[36] such that he was placed in a seclusion room.
[34]CB 662
[35]T663
[36]CB 668
41Nurse Glen Thompson completed a risk assessment[37] on 9 January 2016 at 18:35 hours. It concluded that Patient DB was a HDU-risk patient with a 2/4 risk of harm to self and others.
[37]T671
42By the morning of 10 January 2016 at 6.45am, Patient DB was noted to be generally improved in his mental state.[38] He was able to participate in conversations until around 10.00am, when he was allowed to phone his family. Post that telephone call the notes are revealing:
“… became very distressed, asking repeatedly to be killed or shot or beaten up. He began grabbing at staff lanyards asking we call the police to put him in jail. Grabbed staffs wrists. Able to let go and put his hands down. Began hitting his head with his hands saying ‘kill me’.”[39]
[38]CB 672
[39]CB 672
43Pausing there, it can be seen that Patient DB’s condition over the past twenty-four hours had been marked by real episodes of mental state deterioration, anger and clearly inappropriate behaviour. This is marked by two incidents in the morning prior to the assault of Mr Skinner – only one of which is revealed by the note above. First they are the grabbing of staff lanyards, being the lanyard of Nurse Thompson. Nurse Thompson admitted that previously the patient had expressed a desire to abscond and leave the unit. In that circumstance, the grabbing of the lanyard which contained his pass card was a significant factor. It was also undoubtedly an invasion of his personal space and exhibited behaviour which did not respect physical boundaries. The second event is more significant and is not recorded but Mr Skinner, Nurse Thompson and Nurse Peckham all agree on it. Patient DB approached Mr Skinner from the back and placed his arms and hands around his shoulders and neck. This was a cause of some concern. Nurse Thompson’s evidence is that he immediately attended and physically sought to remove the hands of Patient DB from around Mr Skinner. Mr Skinner’s evidence is that while he did not feel threatened by this action, in the sense that he was going to be choked, he did consider it to be a significant fact, that Patient DB was invading his personal space and physically touching him. Relevantly, Nurse Peckham sought to de-escalate the situation by approaching and asking everyone to simply let go. Nurse Thompson’s evidence about this is consistent with that of Mr Skinner. They both complied with this direction. This was to ensure that the care team provided a united front, de-escalated the situation quickly and, thirdly, did not engage in further physical contact which had the prospect of escalating the situation further. At this point, the parties are largely in agreement as to the factual matters that occurred. Photograph 17, being Exhibit P3, depicts the positions that Mr Skinner took and Nurse Peckham took, as marked with the red cross for Mr Skinner and the green cross for Nurse Peckham. Mr Skinner’s evidence was that after Patient DB removed his hands, he kept his back to Patient DB so as not to provide stimulation or a confrontation with him and walked away from him. Nurse Thompson moved off to the left of the photograph near the seclusion room. Nurse Peckham took up a position seated on the couch. At that point, it appears Patient DB went into the toilet. I make a finding that Patient DB did in fact enter the toilet. This finding is necessary because Nurse Peckham’s evidence, which was provided by a tendered witness statement and email, notes simply that Patient DB went to an area “near the toilet”.
44It is undoubted that during the time Patient DB was in the toilet he was not being visually observed by nursing staff in compliance with the requirement of the written policy. That policy is found at CB 816. It reads:
“Two nurses have to be present in HDU observing the consumer at all times.”
45The Defendant sought to say that this policy must be interpreted in light of the clinical presentation of the patient. This meant, in effect, that where a nurse formed the view that going into the toilet with the patient would be aggravating or humiliating, the nurse could decide not to keep visual observation of the patient at all times. They called in aid the evidence of Nurse Reinal.[40] I do not accept that the policy ought to be read in that way and I would disagree Nurse Reinal’s evidence was to the effect contended for by the Defendant.[41] I find that the wording of the policy mandated that DB be under visual observation in the toilet.
[40]T743 L 21-30
[41]See T 677 L 1-18.
46Further, even if it were to permit an area of clinical judgement, the circumstances that faced the nurses at around 10.00am involving Patient DB were such that clinical judgement mandated visual observation at all times, including the toilet. On both these bases, I would find that the RCH has breached its duty to Mr Skinner. I make this finding for a number of reasons. First, Patient DB’s situation was one of fluctuating between appearing settled and then at times real aggression, risk to himself and risk to others. So much can be seen from the events the preceding day on 9 January 2016, where he had ended up in seclusion. This is consistent with his ongoing high dose of Olanzepine required to sedate him. Second, his behaviour on the morning of 10 January 2016 indicated a similar escalation in this behaviour. This is evident, particularly after the phone call at 10.00am. The notes of Nurse Peckham clearly indicate a considerable change in his behaviour with wishes to be killed or be taken away, and inflicting physical violence upon himself. That is significant because if he became a danger to himself in an area where he was not visually observed, then he could do considerable damage to himself. This then warranted observation in the toilet. Third, in grabbing Nurse Thompson’s lanyard, he exhibited further escalation in his behaviour, in that he was not only invading Nurse Thompson’s space, but arguably was attempting to further his aim of absconding. Fourthly, the action in placing his arms around Mr Skinner’s upper body and neck was, on any view, a significant change in behaviour. It required Nurse Thompson’s intervention and then Nurse Peckham’s intervention to stop a real escalation. That the nurses achieved such de-escalation is to their credit, however there was no period where the de-escalation was consolidated, or sufficient observations were made to indicate that the trajectory of the behaviour was trending back to being more settled. In those circumstances, the decision to allow Patient DB into the toilet in breach of the guidelines was clearly not warranted.
47Comment here must be made about Nurse Peckham’s evidence. It was given via a written statement and an email.[42] It entirely glosses over the critical matters in this case. It does not set out why Patient DB was allowed to go to the toilet and remain out of sight. It makes no comment that Patient DB was, in fact, in the toilet. Rather, elliptically, it refers to the fact that Patient DB was “near” the toilet area. These matters lead me to infer that Nurse Peckham’s evidence was not comprehensive and tended to obscure the critical judgements that she made in Patient DB’s care. That she was the nurse making these decisions is obvious from the evidence that all three nurses gave. Nurse Thompson and Mr Skinner clearly note that they deferred to Nurse Peckham when she de-escalated the situation moments before. Nurse Thompson and Mr Skinner made the point that it was important to provide a united nursing front to the patient. Given that Nurse Peckham had been successful in the de-escalation moments before, it is obvious that she then took control of the fact that Patient DB was permitted to go to the toilet. It is unclear whether the toilet door was locked prior to DB entering. The evidence tended to suggest that it usually was. In those circumstances, Nurse Peckham would have been the one to have had to unlock it. However, these matters are unclear because they are not touched upon by Nurse Peckham’s evidence.
[42]Exhibit D7. The evidence was admitted in this form without objection from Mr Skinner.
48What then occurred is that Patient DB burst from the toilet and ran directly at Mr Skinner. Mr Skinner’s position at the time is depicted in Exhibit P3 and marked with a red cross. He was rugby tackled to the left side. He did not fall, but staggered backwards and then placed Patient DB in a headlock and took him to a seclusion room.
49The Defendant mounted an argument that even if it had been incorrect for Patient DB to have been left alone in the toilet and not visually supervised at all times, this would not have prevented the rugby tackle upon Mr Skinner. I reject that argument. This is because of a number of factors. Firstly, observation might have allowed for de-escalation of the intended action, as was the case moments before. This is good evidence that Nurse Peckham had the ability to calmly reason with Patient DB. There is no reason to suspect such intervention on her behalf, through visual observation of Patient DB in the toilet, would not have had a similar effect. Secondly, even if such de-escalation by Nurse Peckham in the toilet was not successful, a vocal warning could have been given to Mr Skinner. That would have allowed him time to either evade the rugby tackle or brace for that impact. Such warning would only have taken a second to give and respond to. While Patient DB’s attack happened “very quickly”[43] there was still time for such a reaction on Mr Skinner’s behalf. What did happen however is that Mr Skinner was taken entirely by surprise by a very significant attack from the rear. This occurs in circumstances where he had just been held around the neck by a patient and been involved in a situation of trying to de-escalate Patient DB. It came as a complete surprise, as he no doubt assumed Nurse Peckham was closely monitoring Patient DB.

[43]T285
50I pause here to formally record the findings made above. I find that the Defendant has breached its duty of care to Mr Skinner by failing to comply with its own policy to keep high risk HDU patients in two-to-one nursing care under visual observation at all times. I further find that in this particular instance Patient DB required visual observation at all times, including in the toilet, given his mental state at around 10.00am on 10 January 2016. I find that as a result of that breach, Mr Skinner was rugby tackled in a forceful and violent manner by Patient DB that took him by surprise and left him in a state of some shock.
51Briefly, turning back to conclude the facts of the incident, it is not controversial that Mr Skinner reacted in a manner which even now he describes as embarrassing and inappropriate for a psychiatric nurse of his training and experience. He placed Patient DB into a headlock and manhandled him to the seclusion room. He placed him on his back and put a knee on his upper chest. He restrained him in this manner for moments. Both Nurse Peckham and Nurse Thompson then asked him to stop that action and he immediately did so.

Causation
52Mr Skinner complains that by reason of the negligence of the RCH he has sustained both physical and psychiatric injury. Specifically, he alleges that the physical injury sustained is that of an aggravation of cervical spondylosis and injury to his left arm. Psychiatrically he alleges that he has suffered a psychiatric disorder and depression.[44]
[44]See Plaintiff’s pleadings.
53I will deal with each in turn. However, first, something must be said as to the pre-2014 state that Mr Skinner was in.
54I have set out earlier, and broadly, his relevant medical background. However, it must also be stated that prior to June 2014, Mr Skinner lived an extraordinarily busy and active life. He was, physically, very active. He rode hundreds of kilometres each week, either with his wife or friends. This was road cycling. He derived a great deal of pleasure from it. In addition, he was very good with his hands. He deployed this skill in an extensive renovation that he was engaged in at his property at Nairn Crescent in Ascot Vale. By all accounts, this was a very substantial three-level renovation. Much of this work he did himself. He gave descriptions of clearing soil from the premises in order to make way for an extremely large cellar which could house over fourteen hundred bottles. He was engaged in carpentry and other construction work. He gave evidence that it was a real disappointment that he sustained injury and had to give up this construction work. He was also someone with an interest in business. In about 1985 or 1986 he had bought into a nursing home for the elderly with special needs. He and his wife had run this until 2010. It was by no means a large enterprise, but it was certainly of medium size, requiring skills both as a psychiatric nurse, a as a manager and administrator. He and his wife had also bought a property in Footscray which they proposed to develop into units. They also had interests in a South Australian bed-and-breakfast concern, and at various times had exercised directorial control of that company with others. In addition to all of this, it must be noted that Mr Skinner was working at least on the nurse bank with the RCH and in addition doing other fill-in shifts. Outside of that very active life, Mr Skinner was a devoted grandfather and father to his one daughter and two grandchildren. He would play with them regularly and his wife gave evidence about his involvement in their life. He had a major passion for red wine, dry red wines in particular, and as is mentioned, maintained a very extensive cellar. In addition to all of this, he also had a passion for prestige vehicles. He gave evidence that he had 14 such vehicles, which included a number of older BMWs, a Ferrari Testa Rossa 1986 in concourse condition and a number of Mercedes Benz in concourse condition. He gave evidence of being a member of a car club and enjoying preparing the vehicles for shows and concourse presentations.
55By all accounts, he was an extremely hardworking, industrious man who had a number of highly enjoyable pursuits in his life.

Physical injury
56Prior to the events of 15 June 2014, Mr Skinner’s physical state was good. There was no real suggestion that he had any significant pre-existing physical complaints. It was suggested that he had a level of spinal degeneration, particularly in the neck. However, it must be said that, despite any such degeneration, he was able to maintain a very full and active life, completing hard physical labour and cycling frequently with no inhibition. After the first accident, however, that situation changed. Even though I have found that the first incident did not occur in negligent circumstances, it is necessary to set out Mr Skinner’s medical course after the first accident and before the third incident. This is necessary because at the time of the third accident his physical state was reduced from that which it was before the first incident. That is relevant in determining what injuries exactly were caused as a result of the third incident on 10 January 2016 and the effect of those on him.
57The Incident Report notes that at the time of the first incident Mr Skinner was struck on “[his] left arm and neck”. The treating doctor notes of Dr Samararatna, dated 19 June 2014, Exhibit D1, note that Mr Skinner had been hit on the left shoulder and had reduced movement. The diagnosis was for soft-tissue injury. It does not appear that Mr Skinner took any time off work. However, by 27 June 2014 the hospital had recorded that his neck was quite sore and that he was to access the RCH’s early intervention program for five physiotherapy treatments.[45] By this stage, Mr Skinner was on Naproxen, an anti-inflammatory.[46] There are no records from the RCH physiotherapist. However, Mr Skinner then began to see his wife’s physiotherapist, Ms Tremlet. In August, she recorded that he had both left arm pain, neck pain and headaches. He had spasm in the cervical spine and his headaches were increasing in intensity. She recorded, by September 2014, that he was struggling with his work but continuing on. It appears that Mr Skinner continued working normally and had no further consultations with his treating doctor through the end of 2014. However, by the start of 2015, his treating doctor had referred him to a neurosurgeon, Dr Kavar, whom he saw on 10 March 2015,[47] with an increase in neck discomfort, with left arm pain. Significantly, there were no upper-limb sensory deficits recorded and an MRI scan at the cervical-spinal level showed degenerative change. Physiotherapy was recommended. Mr Skinner kept on working. He gave evidence that he was not physically as capable as he used to be and hence hired a carpenter to assist with his home renovation. His cycling also seems to have decreased at this time. However, he remained on anti-inflammatories, was still performing activities on the building site and remained engaged with his passion for cars and cycling.[48] He also, significantly, remained at work. In fact, he was then approached in the middle of 2015, to become a consultant liaison nurse at the hospital.[49] This is a role that he then took up. It involved him performing assessments at the time of admission.
[45]CB 653
[46]See CB 134
[47]CB 137
[48]T33, L13-21, See also T73 2-3, T95
[49]T74 L29-31 - T75 L1-2
58Mr Skinner applied for a job with Belmore Nursing Agency on 4 September 2015 in addition to his RCH role.[50] This is further evidence that he remained hardworking and industrious and able to work unrestricted after the first accident
[50]CB 831
59The second incident then occurred, where he was assaulted in the emergency department assessment room on 2 December 2015. That assault was about his lower body, particularly his thigh and groin. He did not see a doctor or take time off work.
60On 5 January 2016, Mr Skinner was involved in a bicycle crash. Much was made about the bicycle crash and its effect on subsequent events. What appears clear, though, are the following matters. On this day Mr Skinner was riding in a pack with his wife. At some point, Mr Skinner collided with his wife’s bike and fell onto his outstretched left arm. He got onto his bike and rode home. The next day he attended at the Western Hospital, where an X-ray was taken of his left wrist. The Emergency Department doctor informed Mr Skinner that there was no break of the left wrist, that he had a normal left upper limb, both at the elbow and shoulder, and the same in the right upper limb. He was advised that strapping was all that was necessary and he was otherwise free to go. What was not known at that time by either the Emergency Department doctor or Mr Skinner was that there was actually a misreading of the X-ray and that there was a fracture of the left wrist.
61In this state, Mr Skinner then went to work on 10 January 2016 and was assaulted by Patient DB. There was much speculation initially as to whether or not Patient DB’s action had resulted in the break in Mr Skinner’s left wrist or whether it had aggravated it. For reasons which I will come to, this became irrelevant.
62Immediately after the assault on 10 January 2016, Mr Skinner went to the Royal Melbourne Hospital. Once again, X-rays were taken of the wrist and he was told by the Emergency doctor that there was no break in the wrist. He then went home. The next day, he saw his treating doctor. He complained that he was tender in both wrists and shoulders, with pain and a decrease in the range of motion in his cervical spine.[51]
[51]CB 122
63On 15 January 2016, the Royal Melbourne Hospital telephoned Mr Skinner and informed him that they had incorrectly interpreted the X-ray taken on 10 January 2016.[52] They informed him that in fact his left wrist was fractured. Some weeks later his general practitioner told him that he had received a telephone call from the Western Hospital advising him that his left wrist was fractured and that they had misread the x-ray on 6 January 2016. To summarise, what this means is that Mr Skinner’s left wrist was fractured in the bike incident on 5 January 2016 and was in that state at the time when he was rugby tackled by Patient DB. There is no evidence whatsoever to suggest that the rugby tackle by Patient DB aggravated or worsened that fracture. In fact, the evidence of Mr Skinner himself is that the left-wrist injury “does not bother [him] currently”.[53]
[52]CB 153
[53]CB 109, page 13 Plaintiff’s serious injury affidavit.

Mr Skinner’s physical injuries
64Turning, then, to the injuries caused as a result of the third incident. The day after the third incident, Mr Skinner saw his treating doctor and described tenderness in his shoulders, and pain and decreased motion in his cervical spine. He was prescribed Voltaren and diagnosed with a soft-tissue injury. He saw Ms Tremlet as well, who took a history of increasing neck pain on the right-hand side and right arm soreness.[54] The debate between the parties is as to whether or not Mr Skinner has sustained an ongoing aggravation of cervical spondylosis. Most medico-legal practitioners who have opined in this case accept that to be the case. Mr Troy does suggest that Mr Skinner’s problems are totally constitutional. His opinion is an outlier and I put it to one side. The real debate is between those practitioners who opine that there has been a temporary aggravation of cervical spondylosis, but the effects of that aggravation have now ceased, leaving the underlying condition, and those practitioners who opine that the aggravation is ongoing.
[54]CB 144
65I consider that Mr Skinner succeeds in his argument that he has suffered an aggravation of cervical spondylosis, most seriously caused by the incident on 1 January 2016. That aggravation continues until the present and is likely to continue for the foreseeable future. I make that finding on the following bases.
66First, it is to be noted that Mr Skinner’s treating doctor, Dr Samararatna, has been treating him for over thirty years. That treatment began after the first incident and continues until today. The history of reporting of injury to Dr Samararatna is entirely consistent with Mr Skinner’s version of events. Namely, that after the first incident, he had few problems and continued to work and live a reasonably normal life. However, after the third incident on 10 January 2016, that changed considerably. Treatment by Dr Samararatna has been consistent in respect of ongoing cervical problems. From a long-term treating doctor, this is significant evidence in support of Mr Skinner’s contention that he suffers from ongoing cervical problems. Dr Samararatna has never doubted the authenticity of Mr Skinner’s complaints or that he has an ongoing cervical problem.
67This is supported by the second fact, which is that no treating doctor or medico-legal practitioner describes Mr Skinner as displaying normal illness behaviour.[55]
[55]Mr Carey at CB 426
68Thirdly, Mr Skinner worked normally after the first incident, was promoted, in fact, and applied and obtained further work with another nursing agency, and continued to work after the second incident on 2 December 2015. It is undoubted that he is a hardworking and conscientious person who has attempted to cope as best he can. There is no indication otherwise. This suggests that the incident on 10 January 2016 was significant, as it forced him off work. Implicitly then the first incident was of substantially less significance than the third.
69Fourthly, the medical evidence suggests that the 2016 incident was the major contributor to his ongoing disabilities.[56]
[56]Mr Slesenger at CB 297, Dr Aliashkevich at CB 201 and Mr Sullivan at CB 313
70Fifthly, when examination is made of the medico-legal opinion proffered, it tends to support Mr Skinner’s argument. First, the evidence provided by Mr Troy and Mr Marshall is significantly outdated, being in 2016 and 2017. They reported prior to all investigations for the right shoulder and neck problem, or the participation of Mr Skinner in the pain management course. They have not been able to assess these factors in their conclusions. The report of Mr Lange, relied upon by the Defendant, is that of an occupational physician and is of limited benefit in assessing cervical spondylosis. Mr Carey, who was the neurosurgeon relied upon by the Defendant, described Mr Skinner as a “… pleasant direct and stoic witness”.[57] He diagnosed an aggravation of cervical spondylosis, with a prognosis for ongoing discomfort and disability.[58] Mr Carey opines, in his latest report dated 30 April 2020,[59] that Mr Skinner suffers from ongoing cervical spondylosis aggravation and that his work remains contributing to his ongoing problems.[60]
[57]CB 426
[58]CB 430
[59]CB 440
[60]See paragraph 6 of his report at page 440.
71This opinion is mirrored by that of Professor Bittar,[61] the treating neurosurgeon, and also Dr Aliashkevich in his numerous reports.[62]
[61]CB 170
[62]CB 192-234
72When set out that way, it can be seen that there is, in fact, concordance in the current medico-legal opinion by the relevant neurosurgeons as to Mr Skinner’s condition.
73Having set that out, I find, consistent with the above, that Mr Skinner suffered a significant aggravation of his cervical spondylosis on 10 January 2016 and that such significant aggravation continues to materially contribute to his condition today.

Mr Skinner’s Psychological injury
74Mr Skinner’s psychiatric difficulties began almost immediately after the third incident. He reported anxiety and insomnia and was treated with Diazepam and Temaze by his treating doctor on 18 January 2016. Significantly, he was also referred to Dr Tipirneni, a psychiatrist. He saw Dr Tipirneni in February 2016,[63] who diagnosed a Chronic Adjustment Disorder of a depressive-type, and described Endep and psychotherapy. It was recorded that Mr Skinner was experiencing flashbacks and nightmares, he was drinking half a bottle of wine a day and was unable to work.[64] This is supported by his treating doctor’s reporting at around this time.[65] The situation continued, with Dr Tipirneni providing ongoing therapy and medication throughout 2016. By mid-2017, the situation was much the same, though there was some hope that if the depression and flashbacks could be dealt with, then there was some opportunity for Mr Skinner to return to work part time on the nurse bank.[66] Things then continued in much the same way during the remainder of 2017, with ongoing treatment and medication by Dr Tipirneni. By mid-2018, Dr Tipirneni was so concerned that he added Prazosin for flashbacks and nightmares. There was diagnosed chronic depression with some features of PTSD, being anxiety and panic attacks.[67] It is to be noted that the medical reporting at around this point in time appears remarkably consistent. Dr Timothy Entwisle, medico-legal specialist for the Defendant,[68] opined Mr Skinner’s condition was so significant that additional SSRI medication needed to be added.[69] However, Dr Entwisle noted that there had been a good reaction to the pain course that he had attended, he was attending a number of activities, and he recorded a decrease in pain medications. He disagreed with the diagnosis of Dr David Weissman, the medico-legal psychiatrist for Mr Skinner, who diagnosed Chronic Major Depressive Disorder of a moderate nature, with mild to moderate traumatising features. However, both Dr Weissman and Dr Entwisle were of the view there was a theoretical partial capacity for work, and in that they were joined by Dr Tipirneni. There, things stood in mid-2018.
[63]CB 122
[64]CB 148
[65]CB 122
[66]This was similarly the case with the treating doctor’s reporting at CB 216.
[67]CB 155
[68]At CB 398
[69]CB 402
75Since that time, Mr Skinner has continued on with treatment by both his treating doctor and psychiatrist in respect of his psychiatric symptoms. This involved essentially treatment by Dr Tipirneni every few weeks. A number of things might be said about the psychiatric material. Firstly, Mr Skinner has been under long-term treatment from Dr Tipirneni since February 2016 to date. This is over four years of treatment with ongoing prescription of medication, such as Endep, Valdoxan and Prazosin. That, in itself, lends support to Mr Skinner’s argument that he suffers from a significant ongoing psychiatric illness. Second, that treatment by the treating psychiatrist is for symptoms which are recorded in very similar terms by the treating doctor during this period of time. Third, while there is some recording that the condition is related to the litigation process itself,[70] this is not supported by the treating doctor or treating psychiatrist and is only the opinion of Dr Entwisle. Fourth, none of the psychiatric material indicates that Mr Skinner is anything other than a credible and reliable patient relaying his symptoms. I do note that the history given to Dr Entwisle on 27 April 2020,[71] relays a picture of a man substantially more distressed and less active than that revealed by the reporting on 25 September 2018. However, even with that reporting, Dr Entwisle still forms the opinion that Mr Skinner, as of April 2020, has a chronic adjustment disorder with depressed mood and alcohol overuse. It is not a substantially different view to that of Dr Weissman, who diagnoses a major depressive disorder with anxious distress that is moderately severe.

[70]CB 418
[71]CB 410
76In the result, I would prefer the opinion of Dr Weissman and that of Dr Tipirneni. That is for the following reasons. Firstly, the long history of treatment Dr Tipirneni has had with Mr Skinner in a close therapeutic setting leads undoubtedly to a more balanced, insightful view of Mr Skinner’s condition. Second, the fact that Dr Tipirneni’s history is largely confirmed by the contemporaneous notes of Dr Samararatna. Thirdly, the ongoing doses of Endep and Valdoxan (and similar psychiatric medications) over four years. Further, the fact that Mr Skinner, on any reporting, has presented as a credible person throughout, giving a largely consistent history. It could easily be said that Mr Skinner’s condition has been acted upon by the litigation process. No doubt, this acted as some stressor on Mr Skinner’s condition. However, this does not undermine the central thesis of Dr Tipirneni and I would accept his opinion and that of Dr Weissman, as expressed in his last report of 17 June 2020. As such, I find that Mr Skinner suffers from chronic adjustment disorder with depression and Chronic Pain Syndrome, requiring Valdoxan and Endep.

Capacity for employment
Surveillance and credit
77It is important to make some findings as to Mr Skinner’s credit. Necessarily, this involves an assessment of the video footage which was shown to the Court. Most of it can be put to one side. However, about one hour of video footage was shown depicting Mr Skinner washing and polishing a Triumph. I will refer to this as the “Triumph footage”.[72] At the outset, it must be said that an admission was made that ninety-five hours of video footage was taken and yet only 73 minutes and 15 seconds were relied upon in Court.[73] As I have said, the Triumph footage went for around one hour. That footage showed Mr Skinner driving in a car with his wife from Melbourne. That car eventually arrived at the property where Mr Skinner was seen to be engaged in washing a Triumph. Mr Skinner gave evidence that he was performing a favour for a dying friend. As a result, he made a special effort to persist with this activity while experiencing pain. He gave evidence that it was an arduous task for him and he would not have done it unless it was a special circumstance.
[72]Exhibit D5
[73]Exhibit P6. The figure of 95 hours assumes that the time of 1:45am on 26 October 2017 is a typographical error and should read 1:45pm. Should this assumption be incorrect, the figure becomes 107 hours.
78The Triumph footage was taken in September 2016. It shows Mr Skinner involved in a range of physical activities. These were washing the Triumph, predominantly on the right-hand side, with a soft cloth and then using a clay bar to remove impurities from the surface and, lastly, using a buffing machine, held with one hand and steadied with the other, on the right-hand side of the vehicle. The tasks involved bending, reaching, twisting and stretching. Both of Mr Skinner’s arms were involved. His neck was bent on numerous occasions for minutes at a time. He was on his feet, walking about the car, squatting next to it and standing and working on the car throughout this period. He gave evidence that the task took some four hours in total. It is to be noted that video footage was only taken of about one hour of this. The video footage showed Mr Skinner working on the right-hand side of the car. This is because the left-hand side of the car was obscured by the shed door. Mr Skinner made the point that in order to perform these duties he was forced to take to Oxycodone in the morning and another two Panadeine Forte at lunch. I do not accept this evidence. First, the treating doctor’s notes do not indicate prescriptions for Oxycodone at around this time, nor in the months preceding this event.[74] Second, the history given to Dr Aliashkevich,[75]indicates that by this stage Mr Skinner had been weaned off Oxycodone. Furthermore, Mr Skinner, a trained nurse, gave evidence that having taken the Oxycodone, he then immediately proceeded to drive.[76] Such, clearly, would not be safe. Furthermore, he indicated that after consuming this medication in the morning, and Panadeine Forte at lunch, after finishing work for the day, he then consumed wine. It is unlikely, given recommendations not to drink with such medications, that he would drink. He stated that because he had had a drink he did not drive home and his wife did. While his wife confirmed that she did drive home, this recounting does not overcome the fact that Mr Skinner performed work of a modest physical nature for over four hours while using both arms and flexing his neck. Overall, the impression I was left with was that Mr Skinner, as at September 2016, had a modest physical capacity for such tasks. However, the video footage is over four years old and must be viewed in the context of all the evidence.
[74]See Exhibit D1
[75]CB 191
[76]T368 L30-31
79To this extent, something also must be said about the way Mr Skinner presented. At times he was argumentative, condescending and supercilious in his presentation. He answered questions fully and no doubt to the best of his knowledge. He was clearly feeling pressured at various times, having spent nearly three days in the witness box. He was also recalled for a short period. Mr McDonald SC very fairly acknowledged, however, that the Triumph footage only went to the issue of capacity and was not part of a broader and more substantial attack on credit.[77] To this extent, the Triumph footage is confined to the issue of capacity for work. Overall, I find that Mr Skinner is totally incapacitated for all work and has been since 10 January 2016. I make that finding on the following grounds. First, while both the treating doctor[78] and the treating specialist, Dr Tipirneni,[79] posited a capacity to work in May 2017, Dr Samararatna postulated a return to work in six months on a graduated basis and Dr Tipirneni opined that if depression, flashbacks and legal issues could be resolved, then a partial return to work on a nurse bank could be possible. As I have found, Mr Skinner’s depression and flashbacks have not resolved
[77]T731
[78]CB 124
[79]CB 151
80While the neurosurgeon Dr Aliashkevich has reported consistently over the years and he was given the Triumph footage, I do not accept his opinion that Mr Skinner is totally and permanently incapacitated on physical grounds. This is because he does not descend to explain how his reported restrictions are consistent with the range of motion and activities depicted on the video. For example, he records that Mr Skinner is unable to push a trolley or vacuum for more than a short period, and cannot stand for more than twenty minutes. He then blithely asserts the Triumph footage of Mr Skinner washing the car is not inconsistent with Mr Skinner’s history or report of complaints. I note Professor Bittar was not shown the video. Mr Carey, similarly, did not see the footage and deferred to the occupational physicians on the issue of capacity.
81The psychiatric evidence as to capacity for employment seems largely similar, however seems arrived at for different reasons. Mr Entwisle, in his latest report of 27 April 2020,[80] opines there has been a substantial deterioration over the last year in Mr Skinner’s mental state. He posits that once the litigation process is over there will be a capacity for work. This seems to imply a total incapacity at present. Dr Weissman, in his latest report of 17 June 2020, opines there has been a doubling of medication and essentially a deterioration in Mr Skinner’s mental state more recently. In his opinion, Mr Skinner is totally incapacitated.[81] This is consistent, then, with the opinion of Dr Tipirneni given most recently, who has, as I have recorded, the best and most comprehensive history as the treating practitioner for over four years, seeing Mr Skinner at least once per month.
[80]CB 140
[81]CB 280
82The occupational physicians who have provided opinions, Dr Slesenger, Dr Lange and Dr Rowe are starkly divided. Dr Slesenger examined Mr Skinner in late 2018 and posited a work capacity of four days, working four hours at a time, but he did note that there were issues with Mr Skinner being able to reliably attend, given his mental state. Mr Lange’s opinion was that Mr Skinner had, essentially, an unfettered capacity for work. This does not seem to accept Mr Skinner’s significant psychiatric condition, the fact it is entrenched, requires significant medication and ongoing treatment with Dr Tipirneni. I would not accept Dr Lange’s opinion for those reasons. Further, I would not accept Dr Slesenger’s opinion of a partial incapacity, given it does not grapple with a deterioration in the mental state since his reporting in late 2018. Mrs Skinner gave solid evidence about this deterioration in her husband’s state and it is mirrored by Dr Samararatna’s opinion and notes. She gave clear evidence of the change in her husband’s behaviours, mood and the impact his psychiatric state was having on him. I found her an impressive witness. Overall, I accept the opinion of Dr Rowe, resting, as it does, in conformity with the treating doctors and specialists. I find that Mr Skinner is totally incapacitated for work. I make this finding from 10 January 2016 to date and for the foreseeable future as a result of physical and psychiatric injuries, but particularly on the basis of a worsened psychiatric state over the last eighteen months.
Damages
83Prior to these injuries sustained on 10 January 2016, Mr Skinner had lived a very full life. He was a devoted family man with his wife, and daughter and grandchildren. By all accounts, this was an active and involved family life. He had a substantial interest in vintage cars and working on them in order to bring them to concourse condition. He can no longer do this. He had a substantial interest in dry red wine. He regularly travelled in pursuit of this love. Now he cannot travel as he used to, to South Australia. However, by reason of his mental state, he has also been deprived of the social enjoyment of this love and appreciation of wine. This is very significant to him. He was also very good with his hands as a builder. He had renovated his house and also a property in South Australia. He had plans with his daughter to begin a development in Footscray of some units. While the first injury in June 2014 reduced some of this capacity, he still maintained an ability to work with his hands and this was a source of enjoyment to him. He has been deprived of all of this. However, I do note that he retains a physical capacity to do some things, such as polish and work on cars, which was a real source of enjoyment for him. While he can probably not go back to riding a bike as he used to, he similarly might be able to return to some form of bike riding. The loss of all these activities is significant for him and I award the sum of $150,000 taking into account the effect of the first incident.
84In terms of his loss of earnings, I find that his loss as at 10 January 2016 was for the sum of $1583 per week. It was suggested by the Plaintiff, in written closing submissions, that the appropriate figure was much higher to reflect his immediate earnings prior to the incident of 10 January 2016.[82] I do not find that fairly represents the Plaintiff’s earnings at that time for the purposes of this calculation. It is true that the Plaintiff was working 2 jobs at that stage – with Belmore Nursing Agency and the RCH. However this was a relevantly new occurrence and his earnings over the last 3 years on average are much lower. In addition the Plaintiff had hope to begin the development of his Footscray block and this would have taken him away from his paid work so that he could do some of that work hands on. As such I accept the Defendant’s submission that an average of the 2.5 years prior to the 10 January 2016 is a more accurate representation for the calculation of the past loss figure.[83]I find that loss to have occurred from 10 January 2016 to date, a period of 242 weeks (28 August 2020). This is $383,086.
[82]Plaintiff’s Closing Written Submissions at [6.4]
[83]Defendant’s Closing Written Submission at [57] which in turn relies on the Agreed Figures for Economic Loss Calculations
85The sum for Fox v Wood was agreed at $50,000.
86Future loss of earnings runs from today’s date to age sixty-seven, when I find Mr Skinner would have retired. I do not accept that he would have continued working to age 70 given he was a man of such significant interests and with investments. While he did describe his South Australian venture as a “disaster” it cost him about $50,000 in total. Given his asset base, investments and interests I consider it unlikely this was sufficient to keep him at work past age 67.
87The Plaintiff submitted that the appropriate rate to calculate the future loss of earnings was that of $2360 net per week inclusive of superannuation. I do not accept that figure. It posits the notion that Mr Skinner would have kept working 2 jobs as he was in the period immediately prior to 10 January 2016. This period was an anomaly in terms of earnings when regard is had to the Agreed Figure for Economic Loss over the years preceding the third incident. The Defendant’s formulation of the rate is more accurate. It reflects the average earnings in the 2.5 years prior to 10 January 2016 and encapsulates the period of high earnings immediately prior to ceasing work. It is very difficult to be precise however I consider this better reflects the reality of the situation. With stagnant wage growth over many years it is a fair assessment of the Plaintiff’s current loss on a weekly basis.
88I therefore find that he has lost $1583 net per week by the multiplier, which was agreed between the parties at 299.9 to age 67. This provides a figure of $474,742. Applying a usual discount of vicissitudes, noting the lack of any significant past medical history, of 15 per cent reduces the award to $403,531. I do not find that Mr Skinner’s past medical history of torn knee ligaments or mild psychological problems increase the vicissitudes allowance. Similarly issues of carpal tunnel and hypertension are not so significant as to increase the allowance. These matters were not the subject of much medical forecasting and it is extremely difficult to predict the effect they would have on his working capacity.
89I therefore, in total, award the following amounts:
General damages: $150,000
Past loss of earnings: $383,086
Fox v Wood: $50,000[84]
Future loss of earnings: $403,531
TOTAL: $986,617
[84] This figure was agreed between the parties in an email to the Court on 31 August 2020
90I will hear the parties on the question of interest and costs.
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[2020] VCC 1359

3 September 2020