Skinner v Royal Children's Hospital

[2020] VCC 1203

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-19-03489

NOEL SKINNER	Plaintiff
v
ROYAL CHILDREN’S HOSPITAL	Defendant

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2020
DATE OF JUDGMENT:	8 August 2020 (Oral Judgment)
CASE MAY BE CITED AS:	Skinner v Royal Children’s Hospital
MEDIUM NEUTRAL CITATION:	[2020] VCC 1203

REASONS FOR JUDGMENT
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Subject:  Admissibility of Evidence

Catchwords:             EVIDENCE – Admission of Expert Evidence – Whether witness possesses relevant specialised knowledge – Whether witness evidence is based on relevant specialised knowledge – Whether Expert Evidence is relevant

Legislation Cited:     Evidence Act 2008 (Vic)

Cases Cited:Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588, Hudspeth v Scholastic Cleaning and Consultancy services [2012] VSC 555, Honeysett v The Queen [2014] HCA 29; 253 CLR 122

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S McCredie with S Bailey	Zaparas Lawyers
For the Defendant	I McDonald with C Kusiak	Hall & Willcox

HIS HONOUR:

1       This is a ruling concerning the admissibility of the report of Eunice Gribbin, dated 21 June 2016.

2       On 7 August 2020, on day six of the trial, I ruled that the report and the evidence of Ms Gribbin was inadmissible. At the time, I indicated I would provide further reasons. I do so now.

3       The case before the court is brought by Mr Noel Skinner against his former employer, the Royal Children’s Hospital. He began work there as a psychiatric nurse in 2011. He ceased work on 10 January 2016. During the course of his employment he was subjected to 3 assaults. The first on 15 June 2014 involving patient K in the low dependency unit.[1] The second on 2 December 2015 in the emergency department assessment room[2] and the third on 10 January 2016 involving patient DB in the high dependency unit.[3] All involved psychiatric nursing of minors at the Royal Children’s Hospital.

[1] Joint Court Book “JCB” 104, paragraph [44]

[2] JCB 107, paragraph [59]

[3] JCB 109-110, paragraphs [66-68]

4       Essentially, the Plaintiff sought to call Ms Gribbin to provide evidence as to the Royal Children’s Hospital’s compliance with the standard of care owed to a psychiatric nurse, such as Mr Skinner, at the time of each of the three assaults.

5       The Defendant objected to the calling of such evidence on four bases, as set out in their written submissions.[4] These can be summarised in the following terms:

[4] Defendant’s Submissions in relation to the Admissibility of the Opinion of Eunice Gribbin, at paragraph [2]

a)    Ms Gribbin was not suitably qualified in psychiatric nursing to have the requisite specialist knowledge to provide expert opinion;

b)    her opinions are not based on specialised knowledge in psychiatric nursing;

c)    irrelevancy;

d)    the assumptions in the report, in part, used to justify the conclusions have not been made out.

6 An alternative ground under section 135 of the Evidence Act[5] was raised also. Given my findings, I need not deal with this issue further.

[5]Evidence Act 2008 (Vic)

7 The legal principles regarding the admissibility of opinion expert evidence were not in dispute. The Plaintiff accepted that paragraphs [4-12] of the Defendant’s written submission accurately set out the principles, save for paragraph [9].[6] This difference was not material to the outcome of the application and can be left alone.

[6] Defendant’s Submissions in relation to the Admissibility of the Opinion of Eunice Gribbin, pages 1-4

8       The starting point is the subject matter of the case: the psychiatric nursing care and the environment of psychiatric nurses working at the Royal Children’s Hospital, during the relevant period.

9       That such psychiatric care was an area of specialised knowledge and practice was undoubted and accepted by the Plaintiff.

10      Ms Gribbin is a qualified nurse with, from her CV, a focus on perioperative and neonatal care. Her evidence was said to be relevant because she also held roles as a clinical nurse educator, training nurses across the whole of the hospital, including mental health. However, as psychiatric nursing is said to be a specialised subset of nursing, in order to give relevant expert opinion she would have to have:

a)    specialised knowledge of psychiatric nursing; and

b)    proffer opinions wholly or substantially based on such specialised knowledge.

11      I granted the Plaintiff leave to call Ms Gribbin on a voir dire to expand on her CV and establish she had such specialised knowledge. Her evidence did not go that far, in my opinion. First, her CV records training and experience in theatre and neonatal nursing mainly. Her masters was a generalist nursing post bachelors course, and her PhD candidacy thesis was on neonates born with a congenital bowel disease. Her work otherwise is on a nursing disciplinary board and tutoring and lecturing student doctors and nurses. No specific psychiatric nursing experience, training or study was shown. This is important because for example, she proffers opinion as to the incident on 15 June 2014 that the nurse in charge should have acted in a certain way when faced with an adolescent such as K, with certain behaviours alleged to be evidence of a deteriorating psychiatric state.[7] Such an expert opinion calls for  specialised psychiatric nursing knowledge. To this end the comments in Dasreef v Hawchar[8] are apt: that it is inappropriate for experts to comment outside their field of expertise. To this extent, I find that while Ms Gribbin might have expertise in general nursing, involving theatre or neonatal care, her expertise does not extend as far as psychiatric nursing.

[7] JCB 530, See (b.1) at page 9

[8]Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588, at paragraph [37]

12      That failure to have the relevant specialist knowledge infects the entirety of the report and the opinions proffered. Nothing can cure this lacuna.[9] As such the entirety of the report is inadmissible on this basis.

[9]Hudspeth v Scholastic Cleaning and Consultancy services [2012] VSC 555 at paragraph [6]

13      For completeness, I deal with the further matters raised by the Defendant in objection to the admission of Ms Gribbin’s report in short form.

14      First, the Defendant argued that the opinions proffered are not wholly or substantially based on specialised knowledge. This is a demanding test, see Honeysett v The Queen.[10] In particular the Defendant highlighted paragraphs C.2 and C.3.[11] When examined, these are clearly no more than statements made in hindsight, are blatantly obvious, and draw on no expertise at all. Further examples that fall into these categories are

[10]Honeysett v The Queen [2014] HCA 29; 253 CLR 122

[11] JCB 530

a)    the first two sentences of D.1 at page 11,[12]

[12] JCB 532

b)    f.1 at page 12,[13]

[13] JCB 533

c)    the last two sentences of b.1 on page 14[14]

[14] JCB 535

d)    C.1 on page 14[15]

[15] Ibid

e)    d.1 on page 14;[16] and

f)     F.1 – F.6 on page 15.[17]

[16] Ibid

[17] JCB 536

15      Secondly, the Defendant argued that the opinions proffered proceed on incorrect assumptions and are therefore irrelevant. That this is so, is made clear given that Ms Gribbin was the last witness to be called for the Plaintiff’s case. No further lay evidence was to be given to support the factual basis on which the Plaintiff brought his claim. Two examples fall into this category and are further reasons to exclude these components of Ms Gribbin’s opinion:

a)    C.1 at page 9 proceeds on the basis that prior to the assault on 15 June 2014 the Plaintiff had complained of chairs being used as weapons. This evidence was not given by the Plaintiff.[18]

b)    At the time of the second assault the Plaintiff was in a sealed room, into which no one could see. Paragraph a.1 on page 10 of her report proceeds on this basis.[19] However photograph 1 of the bundle 14 June 2018 shows clearly the situation was otherwise.[20]

[18] JCB 530

[19] JCB 531

[20] Photograph bundle taken on 14 June 2018 by Sania Ciciulla, Solicitor of Hall & Willcox

16      For all of the above reasons I rule the report and evidence of Ms Gribbin inadmissible.