Trinet Ruth Wilson v Gold Coast Hospital and Health Service
[2023] QSC 135
•23 June 2023
SUPREME COURT OF QUEENSLAND
CITATION: Trinet Ruth Wilson v Gold Coast Hospital and Health Service
[2023] QSC 135
PARTIES:
Trinet Ruth WILSON
(plaintiff)
v
Gold Coast Hospital and Health Service
(defendant)
FILENO/S:
No 3390 of 2020
DIVISION:
Trial Division
PROCEEDING:
Civil
ORIGINATING COURT:
Supreme Court of Brisbane
DELIVEREDON:
23 June 2023
DELIVEREDAT:
Brisbane
HEARING DATES:
5 – 8 December 2022
13 December 2022
20 – 21 February 2023
JUDGE:
Ryan J
ORDER:
Judgment for the plaintiff in the sum of $1,634,418.55.
The parties are to provide written submissions on costs within 21 days.
CATCHWORDS:
TORTS – NEGLIGENCE – STANDARD OF CARE – SCOPE OF DUTY AND SUBSEQUENT BREACH –
GENERALLY – where the plaintiff was employed as a nurse by the defendant – where a high proportion of patients on her ward suffered from dementia or delirium, causing them to behave aggressively, or to be combative to care – where the plaintiff was not trained in patient restraint nor was she instructed not to take part in patient restraint – where a disruptive patient with dementia required restraint to receive medication – where a call for the assistance of security officers was made – where two security officers arrived – where the plaintiff and the two security officers restrained the patient on
her bed to allow another nurse to inject the patient in the thigh
2
with medication – where the plaintiff restrained the patient’s legs and the security officers held the patient’s arms (one arm each) – where the patient kicked at the plaintiff and threw something at her when her limbs were released – where the plaintiff injured her sacroiliac joint when she quickly moved out of the way of the kick and the object being thrown – whether the defendant breached the duty of care it owed to the plaintiff including by failing to instruct her not to take part in the restraint of a patient – whether the defendant breached the duty of care it owed to the plaintiff by the failure of the two security officers to call for a third once they appreciated that the patient required restraint
DAMAGES – ASSESSMENT OF DAMAGES IN TORT-
PERSONAL INJURY – GENERALLY – where plaintiff had previous issues with her back requiring hybrid surgery on her spine – where imaging showed pre-existing degeneration of the plaintiff’s sacroiliac joint – whether the change to her biomechanics as a consequence of the hybrid surgery added to her vulnerability to permanent injury of her sacroiliac joint – whether the degeneration of sacroiliac joint was likely to become painfully symptomatic within five to ten years of the workplace incident anyway
Workers Compensation and Rehabilitation Act 2003 (Qld) Workers Compensation and Rehabilitation Regulation 2014 (Qld)
French v QBE [2011] QSC 105, cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, cited Peebles v Workcover Queensland [2020] QSC 106, cited Peebles v Workcover Queensland [2021] QCA 21, cited Reddock v S T & T Pty Ltd & Anor [2022] QSC 293, consideredStokes v House With No Steps [2016] QSC 79, considered
COUNSEL:
D Aktinson KC for the plaintiff R Morton for the defendant
SOLICITORS:
Murphy Schmidt for the plaintiff BT Lawyers for the defendant
Table of Contents
Overview............................................................................................................................... 5
The plaintiff – assessment of credibility and reliability........................................................ 6
The plaintiff before the injury............................................................................................... 6
The SMU at Robina.............................................................................................................. 8
The plaintiff’s recollection of her training............................................................................ 9
The plaintiff’s understanding of a “Code Black”................................................................ 10
Cross-examination of the plaintiff about her training and Code Blacks.............................. 10
11 March 2016 – the day before the incident...................................................................... 11
12 March 2016 – the day of the incident............................................................................. 11
Other evidence of the incident............................................................................................ 14
Cross-examination of the plaintiff about the incident......................................................... 14
The plaintiff’s attempts to work following the incident..................................................... 15
Treatment and therapies undertaken by the plaintiff........................................................... 16
The plaintiff’s current state................................................................................................. 17
Patient M............................................................................................................................. 18
Security responses to calls for assistance by nurses on the SMU and their violence prevention training 21
Evidence of Mr Macdonald............................................................................................ 22
Occupational violence prevention training..................................................................... 22
Documentary exhibits relevant to staff training.............................................................. 22
OVRATs......................................................................................................................... 25
Security responses to calls for assistance........................................................................ 27
The training of nurses to keep themselves safe............................................................... 29
Evidence of Paul McGrotty............................................................................................ 29
Expert evidence about training of nursing staff in restraint................................................ 31
Dr Catherine Daniel – plaintiff’s nursing expert............................................................. 31
Dr Helene Metcalfe – defendant’s nursing expert.......................................................... 38
Dr Daniel and Dr Metcalfe – conclave report................................................................. 40
Evidence of medical experts............................................................................................... 41
Dr Labrom – plaintiff’s expert – Adult and Paediatric Spinal Surgeon.......................... 41
Evidence in chief of Dr Labrom.................................................................................. 41
Cross-examination of Dr Labrom................................................................................ 48
Dr Gallie – defendant’s doctor – Orthopaedic Surgeon.................................................. 52
Cross-examination of Dr Gallie................................................................................... 53
Dr O’Toole – defendant’s occupational and environmental medical expert.................. 57
Cross-examination of Dr O’Toole............................................................................... 59
The articles produced by Dr O’Toole......................................................................... 60
Dr O’Toole’s interpretation of the articles.................................................................. 63
Dr Labrom’s comment on the articles......................................................................... 63
Evidence of psychiatric injury............................................................................................. 64
Dr Lockwood – plaintiff’s psychiatrist............................................................................ 64
Dr Chalk – defendant’s psychiatrist................................................................................ 65
Dr Lockwood and Dr Chalk’s “conclave” report............................................................ 65
Other report......................................................................................................................... 65
Ms Nancy Stephenson – Plaintiff’s Senior Occupational Therapist............................... 65
Factual findings about the workplace incident and the response......................................... 66
Liability............................................................................................................................... 67
The foreseeable risk........................................................................................................ 68
A not insignificant risk.................................................................................................... 68
Reasonably practicable precautions................................................................................ 69
Breach of duty & causation.............................................................................................. 73
Quantum.............................................................................................................................. 76
General damages............................................................................................................. 78
Past economic loss........................................................................................................... 79
Interest on past economic loss......................................................................................... 80
Past Superannuation Loss................................................................................................ 80
Future Economic Loss..................................................................................................... 80
Future superannuation..................................................................................................... 84
Fox v Wood damages...................................................................................................... 84
Past expenses................................................................................................................... 84
Future medicals............................................................................................................... 85
Future travel expenses..................................................................................................... 86
Future pharmaceuticals.................................................................................................... 86
Total award...................................................................................................................... 86
Overview
The plaintiff, Ms Trinet Wilson, a registered nurse, was employed by the defendant hospital and health service at the Robina Hospital, Gold Coast Hospital and Health Service. She was injured at work while taking part in the restraint of a patient with dementia, who had been difficult, disruptive, acting out physically, and refusing medication. The injury resulted in very painful symptoms from which the plaintiff has never obtained relief. She is unable to work or take part in activities she previously enjoyed. She is depressed.
She claimed damages for personal injury from the defendant. She alleged that it was negligent in a variety of ways including (but not only) in its failure to instruct her that she should leave the restraint of a patient to security officers.
The defendant’s final position1 was that the plaintiff ought to fail in her claim, because:
(i)There was no risk of injury of which the defendant knew, or ought reasonably to have known. Nor was there a risk of injury that was not insignificant;
(ii)Even if there was a not insignificant risk of injury, a reasonable person in the defendant’s position would not have taken the steps the plaintiff postulated it ought to have taken to guard against that risk of injury;
or
(iii)The plaintiff had not proved that any step the defendant should have taken would have (not could or might have) prevented her injury.
Further, the defendant argued that, because the plaintiff had: (a) hybrid surgery, involving spinal fusion at L5/S1 and disc replacement at L4/L5 before the workplace incident, and (b) a degenerate sacroiliac joint, even if she had not been injured at work, within the next five to ten years, she was likely to have suffered similar symptoms to those she suffered after the work incident, which would have interfered with her ability to work and to enjoy life in any event.
I found that the defendant was negligent in failing to instruct the plaintiff not to be involved in the physical restraint of a patient. Had the plaintiff been so instructed, she would not have been holding the patient’s legs. She would not have been in the
Final, in that it was different from the position taken in the defence as it was framed prior to the first day of trial.
way of the patient’s kicks nor would she have been in the “firing line” for the item which the plaintiff threw at her. Instead, she would have been at the patient’s head, reassuring her while those trained in restraint restrained her, and she would not have been injured.
Additionally, I found that the defendant was negligent because of the failure of the two security officers who attended the ward (to assist clinical staff in the management of the patient) to call for a third to take part in the restraint, rather than the plaintiff. Had the security officers called for a third to take part in the restraint, then, for the same reasons as above, the plaintiff would not have been injured.
I calculated damages at $1,634,418.55.
My reasons follow.
I will hear the parties as to costs by way of their written submissions, to be provided by e-mail to my associate within 21 days of the delivery of this judgment.
The plaintiff – assessment of credibility and reliability
Ms Wilson was an impressive witness. I found her to be credible and reliable. She presented as earnest and honest. Her testimony was not challenged in any significant way. Her description of the make-up of patients on her ward, and their difficult behaviours, was corroborated by the defendant hospital’s own records. She described the workplace incident in a consistent way over time, during her many assessments by various specialists.
Also, she seemed to me to be in physical discomfort at times during her testimony and as she sat in the back of the court throughout the trial.
The plaintiff before the injury
Ms Wilson was born on 22 July 1976. She has not had an easy life. She completed year 9 while living at home but ran away not long thereafter. At the beginning of year 10, aged 15, she was in a car accident. She was hospitalised for treatment for four or five days before returning to live with her parents, who promised her that her home life would be better. It was not, and she left again at 16.
A homeless teenager, she got “into trouble” and did “whatever [she] could” to survive, including sex work. She fell pregnant – still homeless – at 18. Her first child was born in November 1994. He “saved” her. Upon his birth, she “turned her life around”. She changed her lifestyle and focused on education, so that she could provide for him. She decided to become a registered nurse. She was inspired to that calling by the kindness of one of the nurses who looked after her when she was hospitalised after her car accident.
In her words, she then “worked her arse off” to become a registered nurse. There was no exaggeration in that statement. From the late 1990s onwards, as a young mother, with no more than a grade 9 education, she did everything she had to do, and could do, to win a university place in a nursing degree. She became an assistant in nursing in 2001. She worked at an aged care facility from 2001 until 2005. She was awarded a scholarship to complete a diploma in nursing in 2006. On her third attempt, she achieved a place in a university nursing degree in 2006. She graduated in 2012.
Over the years of her study, she had three more children: born in 1999, 2005 and 2006. The father of her two youngest children was a violent man.
In 2012, the plaintiff was living in crisis accommodation with her four children. Physically, she was then capable of everything. She was fit and healthy. She was raising young children and coping with the physical demands of parenting. She enjoyed the beach, football, yoga, and Zumba.
She had no issues with her right sacroiliac joint before the incident the subject of this claim. However, she had past sciatic pain. In 1999, she experienced pain down her leg as she picked up her son from the floor. She was told she had herniated discs which had been aggravated by lifting her children. She saw doctors about it: Dr Tang in 2000/2001; Dr Cochrane in about 2010; and Dr Cleaver in 2014. Dr Cleaver advised the plaintiff that she needed surgery, but she could not then afford it. The gap fee was between $30,000 and $36,000.
Meanwhile, in January 2013, she started work as a graduate nurse at the Robina Hospital. It was her “dream job”. She had a supportive nurse unit manager and “great girls” around her. There was nothing she could not do as a nurse. She worked about 31 hours per week – including afternoon, night, and weekend shifts for which she was
paid penalty rates. At times, she acted as team leader. She was a preceptor for nursing students. She received awards in praise of the way in which she conducted herself as a nurse, including for her personality and her compassion.
She returned to see Dr Cleaver in 2015. By then, her disc pain had worsened. She had saved $19,000 but Dr Cleaver agreed to bulk bill her surgery.
On 31 July 2015, Dr Cleaver performed hybrid surgery on the plaintiff. He fused her L5 and S1 vertebra and placed a prosthetic disc at L4/L5. From the plaintiff’s point of view, the surgery was a success. Within about eight weeks, she was back at work, with a full patient load. She could do “everything”. She was living on acreage. She was able to mow and use a whipper-snipper and a chain saw. She could carry logs. She was able to renovate her house. She used her stand-up paddle board. She walked her dog. She played with her children, including on their trampoline. Any nerve pain she had previously experienced was gone.
At that stage, her plans for her future were to continue nursing, with a view to working full-time when her children were old enough. She was attracted to rural nursing or nursing in Indigenous communities. She had a special interest in wound management and diabetic care. She considered a graduate certificate in the latter. But in whatever capacity, she was going to be a nurse “forever”.
The SMU at Robina
The plaintiff worked in the Specialised Medical Unit (SMU) at the Robina Hospital.
The SMU was a 24-bed, medical ward with a “mixed bag” of patients. It was a busy ward, requiring “heavy work”. From the plaintiff’s perspective (confirmed elsewhere), most of the patients on the ward were “old” – over 65/70. The older patients, who made up 25 – 30 per cent, sometimes more, of the patients on the ward, included those transferred from nursing homes with medical problems like urinary tract infections or pressure sores. Often, those patients suffered from dementia or delirium. There were lots of “behaviours” on the ward – meaning patients who behaved aggressively, or who wandered, or who were confused (because of their dementia or delirium).
On every shift, the nurses would “cop” verbal abuse from patients. On every second shift, a nurse would be “slapped or bitten or punched” or have something thrown at them. As day became night, “behaviours” increased.
Before the incident, the plaintiff had been involved in the restraint of patients a few times. She had been involved in tying a patient’s hands to the bed, on doctor’s orders; re-directing patients back to their rooms; or holding a door shut to prevent a patient from entering a certain area. While providing personal care to some patients, she was required to take care to avoid being punched. She had also served as the re-assurer of patients who had been restrained by security officers for the purpose of receiving their medications.
In about January 2016, the plaintiff noticed that many more agitated patients, or patients with dementia or “behaviours”, were placed on the ward than when she started in 2013. (This observation was confirmed by other evidence.) She understood that the SMU received four or five patients a week from “GARU”, the geriatric acute rehabilitation unit. These patients were medically stable, but they were aggressive and confused and required full nursing care. The plaintiff observed that the SMU, a noisy, acute ward, was not a good place for them to be.
The plaintiff’s recollection of her training
The plaintiff recalled a “couple of orientation days” upon commencing work as a graduate nurse at Robina. She recalled sessions on manual handling, rosters, the union, Q Super, and the hospital computer system. She recalled “one little course about aggressive behaviour management”. She was not taught how to safely restrain a patient to give them medication or for any other reason. (Other evidence confirmed that SMU nurses were not trained in patient restraint.) The plaintiff was never instructed not to assist in the restraint of a patient. The plaintiff remembered being taught how to get out of a wrist hold; how to “de-escalate” situations; how not to be “cornered”; and the importance of knowing where the exits to a space were.
Evidence of the training provided to the plaintiff was tendered. PLA37 showed that on 22 January 2013, the plaintiff completed “OVP verbal skills” and “OVP awareness” training. However, the defendant did not suggest that the plaintiff had been trained in patient restraint. Nor did the defendant suggest that the plaintiff had been instructed not to engage in patient restraint. Indeed, the parties agreed
(paragraph 15 of the Issues Not in Dispute) that the plaintiff had not been trained “in respect to restraint of an aggressive or agitated patient in order to give an intramuscular injection or similar, whether individually or as part of a team”.
The plaintiff’s understanding of a “Code Black”
The plaintiff understood a Code Black situation to be a situation in which there was a “threat to staff, patients, surroundings or the person themselves: the person is becoming quite aggressive and violent and it’s a dangerous situation and we need security”. She understood that there was a phone number to call to cause three security guards to come to the ward to assist. She had seen that happen “many times
… at least once a month, sometimes more”. Other evidence established that that phone number was “222”.
She understood that Code Blacks were called as a last resort: the presence of security officers could be terrifying for the patients. Nurses would do all they could to de- escalate matters first.
The plaintiff had been involved in a Code Black during which she gave the relevant patient an injection. She had been involved in other Code Blacks as the nurse re- assuring the patient.
Before the incident the subject of this claim, she had never restrained a patient’s limbs during a Code Black.
Cross-examination of the plaintiff about her training and Code Blacks
Cross-examination confirmed that the plaintiff had undertaken a course in “basic personal safety” and “occupational violence prevention”. She recalled being told that her safety was to be her number one priority. She was not sure about the sort of activities she engaged in whilst being taught about “violence prevention” although she recalled practicing getting out of another person’s grip.
She acknowledged that the usual procedure for a nurse dealing with an agitated patient on the SMU was to attempt to calm the patient down non-physically, by re- directing them, whilst maintaining the nurse’s personal safety. If physical intervention was required, the procedure was to call a Code Black. The plaintiff “just knew that … you call a number and security would come … and it was a Code Black”.
She understood that a Code Black was to be called when a patient was presenting as a risk to staff, other patients, themselves, or the environment. She understood that, while waiting for security, a nurse ought to stay out of harm’s way, and protect other patients.
The plaintiff herself did not ever call a Code Black, though she had been involved in them. She said that three security officers attended every Code Black she was aware of. She disagreed that, on occasion, two officers turned up and, depending on the situation, might call for the attendance of a third.
11 March 2016 – the day before the incident
On 11 March 2016, the plaintiff was experiencing no “trouble” after the operation performed by Dr Cleaver. She had no problems with her pelvis or her sacroiliac joint.
12 March 2016 – the day of the incident
On 12 March 2016, the plaintiff was rostered to work from 1 pm until 9.30 pm.
At the “safety scrum” of nurses at the beginning of her shift, the plaintiff was told that the patient who later kicked out at her, M, had “had” a couple of Code Blacks previously and had been quite aggressive to other nurses. The plaintiff was told that M had grabbed her “special” (her one-on-one nurse) by the throat and kicked and scratched her. The plaintiff and the other nurses were aware that M could escalate. They were concerned to ensure that M did not hurt other patients or staff. M was not allocated to the plaintiff for that shift.
The staff skill mix on the afternoon/night of 12 March 2016 was, in the plaintiff’s opinion, “really bad”. It included two new graduate nurses, in their second month on the ward; a pregnant, enrolled nurse; a clinical nurse; the plaintiff and another registered nurse, X.
The patients on the ward included a man in bed 16 with an acquired brain injury. He was being nursed while lying on a mattress on the floor, with a security officer present. Three or four patients had dementia and were wandering “non-stop” around the ward. There was a very sick woman in her 20s. The plaintiff herself was nursing a “little, really anxious lady”.
M tried to get into the room of the anxious woman. The anxious woman was terrified. The plaintiff held the door shut so that M could not enter the woman’s room. The plaintiff kept diverting M to the lounge. M saw the security guard at bed 16 and made a “bee line” for him. The patient in bed 16 was dangerous. The plaintiff diverted M again. But this went on and on. M was escalating and becoming really agitated because the plaintiff would not allow her to go into room 16. Also, M was stiff- arming and pushing other dementia patients who were walking around the ward.
M was trying to “do things” at nurse X’s end of the ward as well. X and the plaintiff discussed what they ought to do about M: “And someone said that a Code Black had been called”. The plaintiff did not call the Code Black but, from her point of view, it was definitely a Code Black situation. The plaintiff, X, and another clinical nurse tried to distract M. She was due for anti-psychotic medication, but she refused it and smacked it out of the hands of the nurse who was attempting to administer it. The plaintiff offered her biscuits, but she smashed them. She smashed a cup of tea which had been made for her onto the floor. She was throwing magazines, which were in the lounge, at the television.
The plaintiff thought that the nurse assigned to M was a new graduate nurse, who was overwhelmed. That nurse was sitting at a desk, crying.
The plaintiff and X had M in the lounge area, waiting for security to arrive. The plaintiff had her chart. It was about 6 pm.
Two security officers (men) arrived, rather than three, which the plaintiff thought was unusual. She and X left the security officers to watch M while they went into the treatment room to prepare an intra-muscular injection for M which would/should have the effect of calming her. X drew it up into the syringe.
The security officers marched/dragged M back to her room. She was really elevated and resisting. The security officers got M onto the bed. M was a falls risk, so the bed was “super low”: probably 40 centimetres off the ground.
Each security officer held one of M’s arms as they stood either side of her at the head of the bed. M’s legs were “flying”. She was kicking and thrashing about. X was holding the “fairly biggish” needle. The plaintiff had no time to lift the bed to waist
height, in accordance with “proper” manual handling requirements, because M was so elevated and angry. There was no time to close the curtains around M.
The plaintiff bent “right over” the base of M’s bed. She put her hands around M’s ankles, pushing them to keep her legs straight, so that she would not move while X injected her thigh. There was no one else available to restrain M. M was glaring at the plaintiff as if the plaintiff was the one “causing all of the pain”.
Before the restraint, there was no discussion about the role of the security officers or the nurses in the restraint.
Once M’s legs were as still as they could be, X gave her the injection. After the injection was given, the plaintiff made sure that X was safe and the sharp was out of the way. Then the plaintiff and the security guards let go at the same time. The timing of the letting go had not been discussed or co-ordinated. The plaintiff continued –
Well, I’m still down at the ground and I’m still – as I’m coming up,
[M] has got both her legs up in a – like a tabletop position. Both feet, like, nearly connect with my face and I’ve managed to, like, come from this position and I arched back really quick and I felt her feet. And then I noticed she had thrown like, her arm movement, like she was throwing something, so I’ve twisted – so I’ve gone and then twisted.
…. I felt uncomfortable. I was uncomfortable. There was discomfort, yeah.
The plaintiff left M’s room because her other patients needed care.
The plaintiff disconnected the antibiotics of the young woman patient and squatted down to flush the patient’s cannula. Then, it was “like a labour contraction”. It was something the plaintiff had never felt before. The pain was from her “right sacroiliac through into [her] groin”. It radiated to the other side, down her legs. It took her breath away. She was stuck on the floor, holding on to the bed. It was very painful.
The plaintiff was locked in that position for a minute or so. She managed to get up, perhaps with the help of another nurse. She sat at the nurses’ station – unsure of what had occurred. After about ten minutes, she started her medication round. While giving an injection to one of her patients, the plaintiff bent over a little and experienced a spasm – and then another one. Other nurses had to help her with her patients. She was unable to conduct a handover. All she could do was sit at the desk
until new nurses arrived for the next shift. When her shift was over, the plaintiff went home. She had a bath, took some Valium, and went to bed. The pain was “pretty crazy”.
The plaintiff was not reprimanded for her role in M’s restraint.
Other evidence of the incident
Neither the security guards, nor registered nurse X, nor any other person present on the ward at the relevant time were called.
A security incident details document was tendered. It was created at 18:43 hours by Brian Foley (one of the two security officers who restrained M). The incident was said to have occurred at 18:00 hours. The incident type was identified as “patient aggressive”. The reporting means were stated to be “phone”. The incident was described as follows (errors as per original) –
Psos called to H1 E as female patient with early onset dementia was wandering around the ward and into a male patients room who has been aggressive. For the safety of the patient Psos were required to direct patient back to her room, where she was given IM meds to help settle her down. She was lightly restrained by PSOS in order that meds could be given safely. Psos stood by for a time before being stood down.2
Maree Krug, the nurse unit manager of the SMU, completed a workplace incident report and an incident investigation report which were also tendered. Those documents added little to the information above, although Ms Krug’s documents confirmed the increase in the number of aggressive patients being managed in acute units like the SMU.
Cross-examination of the plaintiff about the incident
Under cross-examination, the plaintiff agreed that patient M was petite and about 59 years old. She was very disruptive. She would wander. The security officers who turned up on 12 March 2016 were each bigger and stronger than M. M was very agitated.
The plaintiff explained how she held M’s legs so that X could give her the injection intramuscularly. It was suggested to the plaintiff that, in fact, each of the security
I assume that “Pso” is an abbreviation of “protective services officer”.
guards were holding M’s thighs steady with one hand, while they held an arm with their other hand.3 The plaintiff said “no”. It was suggested to her that she might not have seen what the security officers did, but she maintained they were holding M’s arms only.
The plaintiff was not contradicted by the defendant’s evidence about what she said the security officers did during the incident. And, notwithstanding the propositions put to the plaintiff during cross-examination, the defendant did not run a case that it was the security officers, and not the plaintiff, who held M’s legs.
The plaintiff agreed that she had to stay out of a patient’s “strike” range. She confirmed that M “brought her legs up and kicked them out towards [her] face”. She confirmed that, as a reflex, she went back and then twisted away because she believed M was about to throw something.
The plaintiff’s attempts to work following the incident
The plaintiff was keen to work the next day because it was a Sunday and penalty rates applied. She started work at 8 am. She made it through the safety scrum. She completed the second or third round of medication. Then, she went to unlock a drawer with a key which was around her neck and “it happened again”; “out of nowhere”. She was stuck in a position. She returned to the nurses’ station to sit down. She could not recall whether she completed her shift.
The plaintiff called in sick the next day – Monday – and then had three days off. She returned to work on Friday, with a lighter patient load. She was able to get through a couple of shifts thereafter but found that she was still having spasms when she stood or sat still. Squatting down at the nurses’ station eased the pain. She did not think she was able to finish her Sunday shift.
She presented at John Flynn Hospital the next day (Monday). She had a CT scan and was told that everything was fine.
She again attempted work but only lasted one shift (Easter Sunday). She picked a folder off the desk and suffered another spasm. She had to lay in an empty bed.
Transcript 1-79.
She tried to work again in July 2016, in accordance with a “suitable duties plan” involving short shifts, three times a week. She was not doing anything on those shifts, other than making patients cups of tea, but she still suffered from spasms. Although it upset her to do so, she had to admit that she could not continue.
Treatment and therapies undertaken by the plaintiff
A few weeks after the incident, the plaintiff saw Dr Cleaver for follow up. He told her she had inflamed the relevant area and that things would be right in a couple of weeks.
She saw a physiotherapist, who suggested there was an issue with her sacroiliac joint. Cortisone injections (by Dr Cleaver) into the joint gave her relief for about nine days. But the plaintiff’s Workcover ceased, and she was unable to continue to receive the injections.
In other efforts to ease her pain, the plaintiff tried physiotherapy, hydrotherapy, a sacroiliac belt, pilates, acupuncture, yoga, a TENS machine, and hot and cold gel packs. She attended a pain clinic.
She saw Dr McEntee who suggested fusion surgery to stabilise her sacroiliac joint because, as the plaintiff understood it, the pain was a consequence of its movement/instability. The plaintiff self-funded fusion surgery on 12 June 2017.
After a five-day hospital stay, and an inability to bear weight for a few weeks, the plaintiff was free of spasms or pain for three to four weeks – although she was experiencing post operative pain. A week after follow up with Dr McEntee, and off crutches, “out of nowhere”, at a careers’ expo with her children, the dragging sensation in the plaintiff’s groin returned, followed by a spasm. She was devastated and embarrassed. Things were back to how they had been. In part, her embarrassment was over involuntary noises she made at the onset of pain).
Dr McEntee continued for about a year to try to assist the plaintiff to no avail.4
Dr McEntee’s notes explained that he performed right sided sacroiliac joint fusion on the plaintiff. His approach was through the right gluteal region, and he placed two
The parties agreed that the records of the plaintiff’s treatment by Dr McEntee were admissible as evidence of her treatment, but not as evidence of his opinion. He was not called by the plaintiff.
metallic rods across the sacroiliac joint. On 25 July 2017, at review, Dr McEntee noted that some of the plaintiff’s symptoms had resolved but the plaintiff complained of a persistent feeling of burning and cold in her right foot. Dr McEntee diagnosed her with a sympathetic nervous system disorder affecting her right lower extremities.
The plaintiff’s current state
Despite everything she has tried, the plaintiff’s pain has persisted.
The plaintiff experiences a deep aching or dragging sensation in her groin which signals that a spasm is coming. If she continues to move, she can avoid the spasms, which occur when the plaintiff is sitting still, or standing, or lying flat. The spasms happen between 5 and twenty times a day – although she can “postpone” them. Crouching, curling and squatting eases the aching. The pain is mostly in her pelvis and her hip.
Her situation now is worse than it was in 2016 because she has de-conditioned. Her worst symptom is the spasming. The aching (in the right sacroiliac joint) and dragging sensation (in the groin) are constant. There is also numbness in the joint.
The effects of the sacroiliac surgery include pain when she lays on her back. Her foot is like ice: “stinging cold”/frozen. Because of her altered gait, she has developed bursitis. She limps when she walks. She has gained 30 kilograms since the incident because she is unable to exercise. Her mental health has deteriorated. She feels she cannot do anything. She is sad and irritable. She feels that she is not a good mother and that her children must look after her. She has nothing to look forward to.
The medication she takes for pain makes her drowsy. No anti-depressant which she has tried has improved her mood. She cannot retain information. She is forgetful. She cannot read. And she cannot work as a nurse – the profession she loved so much.
The plaintiff receives a disability support pension and a family tax benefit. She receives $1500 a fortnight. Her rent, per fortnight, is $1100. She supplements the difference ($400) by drawing from her superannuation. Obviously, she is under financial pressure.
She said she would do anything to go back to work. However, she is unable to drive long distances, sit for long periods of time, or stand for periods of time. Her
medication leaves her feeling “doughy” and affects her memory and concentration. She also struggles to concentrate because she is always focused on what is happening to her groin and right buttock. Putting up with the pain is exhausting.
She applies a “pacing” method during the day – meaning she does a little, then rests, then does a little, then rests et cetera. She rarely leaves her house. She fears spasms in public. She is stressed by the prospect that they will occur (while she is out) and that she will have nowhere to lie down. Also, if she remains at home, she can take her medication and not have to worry about driving (whilst she is on it).
She broke up with her partner a few years ago. She believes that she has nothing to give him.
Had the plaintiff not been injured, her intention was to work as a clinical nurse, in the SMU, as many hours as she could (bearing in mind the ages of her children). She planned to work as long as possible: as she said, “til I drop, pretty much”.
The defendant did not suggest that it was “commercially … or medically practicable” for the plaintiff to return to work: “certainly not as a registered nurse”. The defendant acknowledged that, at best, the plaintiff might obtain “ad hoc” low-paying work in the future.
Patient M
M was a difficult patient and the subject of other “incidents” on the SMU in the days prior to 12 March 2016 including those which involved her lashing out or behaving aggressively, and which required security to control or restrain her.
On 29 February 2016, M’s partner reported that M had become more confused and aggressive over the past few weeks. Progress notes made by staff of the defendant’s emergency department stated that the plaintiff was a 58-year-old female with “confusion, aggressive behaviour, cognitive decline … partner complaints of worsening of behaviour and agitation … visual hallucination”.
On 1 March 2016, it was recorded that M was “[a] [f]alls risk, [a] confused at risk, [with] cognitive impairment, challenging behaviour”. A nurse special was requested for her.
On the same date it was recorded that M had attacked her partner physically: “[N] tried to calm her down with words however … M had been hitting him early in the day, hitting him in the head for no reason”.
On 2 March 2016, the notes record, “Significant dementia … agitation, aggression towards her carer … hugging nurses, lifting up shirt in hall … consistent with a fronto- temporal dementia?”
On 10 March 2016, a nurse special request was made because of M’s “challenging behaviour, absconding risk, confused at risk, wanderer”.
On 10 March 2016, M was involved in a Code Black incident. The incident report stated (my emphasis) –
Psos responded to Code Black at SMU. A confused female patient with an acquired brain injury had grabbed a nurse special around the throat as she left her room. Psos spoke to the patient and continuously had to redirect her as she was wandering around. Nursing staff called for the doctor to attend the ward and medication was prescribed. Initially the patient refused to take the medication but after a continued effort by nursing staff she did eventually take it. The patient was still being rude and confrontational towards her nurse special so Psos remained in attendance until the medication began to take effect. Psos were then called to AAU to deal with another aggressive patient.
Three security officers attended at this Code Black event, which was notified via pager.
Other notes for 10 March 2016 recorded that –
At approximately 0530, patient became agitated and aggressive towards nurse special and primary nurse. Patient walking down the hall yelling at special. Primary nurse offered assistance to patient in trying to calm her down. Patient then became aggressive towards nursing staff, shoulder barging when walking. Primary nurse advised special to keep distance whilst phoning CTC. Primary nurse heard and (sic) bang and seen AIN special pushing and kicking patient away. Code Black initiated by primary nurse. AIN special states patient grabbed her by the throat, she pushed and kicked patient to get her off. Security came to assist. Patient still agitated. NIC trying to given (sic) patient PRN medications. Security still in place ATOR … patient still agitated and aggressive ATOR.
On 10 March 2016, at 18:10 hours, the following Code Black incident occurred –
PSO’s called to escort patient [M] back to ward as she was wandering around H1 courtyard. Patient was returned to ward with PSO’s and nursing staff via wheelchair. Once back on the ward patient was verbally aggressive and agitated wanting to leave her room/ward. Medical staff advised that patient had been placed under guardianship act. PSO’s had to restrain patient on med [?? bed] twice while IM medication was administered. Patients partner was called by medical staff and arrived on ward and entered room with patient. PSO’s were stood down by medical staff once patient settled.
Three security officers attended this incident. The incident was reported by “phone”. I note that this incident was wrongly recorded as “visitor aggressive” incident type. I note that the three PSOs were involved in M’s restraint for the purposes of administering medication to her.
Other notes about M’s behaviour on 10 March 2016 (as agreed by the parties) stated:
On 10 March 2016, a Code Black was called due to M’s behaviour with the notes recording:
(i)‘Nurse for mH1E tried to verbally de-escalate the situation however the patient lunged at her before being restrained by security and returned to the ward. On review of the notes had a similar episode last night requiring a Code Black;
(ii)Contained by security when arriving on ward, being verbally and physically aggressive towards nursing and security staff;
(iii)At approx. 0530 patient became agitated and aggressive towards nurse special and primary nurse. Patient walking down the hall yelling at special. Primary nurse offered assistance to patient in trying to calm her down. Patient then became aggressive towards nursing staff, shoulder barging when walking;
(iv)Primary nurse advised AIN special to keep distance while phoning CTC. Primary nurse heard bang and seen AIN special pushing and kicking patient away. Code Black initiated by primary nurse;
(v)AIN special states the patient grabbed her by the throat, she pushed and kicked patient to get her off. Security came to assist, patient still agitated;
(vi)NIC trying to give patient PRN medication. Security still in place ATOR. Patient still agitated and aggressive ATOR;
(vii)Patient not on ward. Security called to escort patent (sic) back to HI garden outside from public lift. Patient return on wheelchair physically aggressive and verbal towards staff Code Black called. RMO placed patient on adult guardianship act, partner [N] was called and CTC and RMO spoke on the phone for verbal permission to administer IM haloperidol as patient refusing oral meds.”
An addendum to the progress notes made on 10 March 2016 stated (my emphasis) –
Collateral from security … Found in courtyard saving she was “being kept against her will”. Nurse from H1 E tried to verbally de-escalate the situation, however the patient lunged at her before being restrained by security and returned to the ward … On review had a similar episode last night requiring a Code Black … ATSP for aggression and agitation … Contained by security when arrived on ward, being verbally and physically aggressive towards nursing and security staff … Attempted to verbally talk her down and convince her to take oral evening medication however she refused.
On 11 March 2016, the notes record:
Alzheimer’s disease with BPSD – ongoing poor sleep and agitation with tendency towards physical aggression.
Notes for 12 March 2016 stated (my emphasis) –
Patient alert and confused this a.m. All medications as charted. M started pacing corridor this a.m. slightly agitated … gave M some space to allow her to calm down … around 11.30 M escalated to high agitation, refusing to take medications orally to help her calm down. She then took the patient chart so we were unable to see what else she could have. Tried contacting med to see if he could calm her, no answer. The Special was able to reason with M a little – getting the chart off her and security was called. Special reported no trigger as such for the agitation, tried reasoning with M assuring her that she was going home on Monday with no effect. Security came and escorted M back to her room, with their encouragement were able to get .5 mg Risperidone s/l into M.
Neither party relied on the provisions concerning business records and documentary hearsay in the Evidence Act 1977 (Qld) when it came to these or other hospital documents.
Security responses to calls for assistance by nurses on the SMU and their violence prevention training
The evidence produced by the defendant about the way in which it assessed the risks on the SMU between 2013 and 2016, and the consequences of that assessment for the training of staff, revealed that the defendant failed to fulfil its own requirements for the assessment of occupational risk.
I infer that, because the defendant failed to conduct a timely assessment of the occupational violence risk on the SMU, it failed to appreciate that, by 2016, the patient mix on the SMU posed a significant risk of physical harm to staff. I infer –
although it was not explored in evidence – that had the defendant been aware of the risk to staff on the SMU it would have appropriately trained its staff in occupational violence protection. However, the plaintiff does not rely upon the defendant’s failure to properly assess the risk to its staff on the SMU prior to her injury as a relevant breach in this case.
Evidence of Mr Macdonald
The defendant called Raymond Macdonald, who has been employed by it since 2005. He is currently employed as a senior work health and safety practitioner and occupational violence prevention facilitator. He had been an occupational violence prevention facilitator since 2007.
Occupational violence prevention training
Mr Macdonald was asked about occupational violence prevention training (OVPT) between 2013 and 2016. He said that, at that time, there was a tiered approach to training –
(a)The “base level” of OVPT was delivered online and was mandatory for all staff.
(b)A level up, “[f]rontline staff, so nursing and other frontline workers like allied health” were required to undertake occupational violence awareness and verbal de-escalation training. That training was delivered over two days, as part of the orientation to the health service.
(c)Then, in accordance with a staff member’s “risk profile”, there would be additional training in basic personal safety strategy.
A risk profile assessment was conducted as part of a training needs analysis which was “embedded into the occupational violence risk assessments” (OVRATs) undertaken at the relevant time. The analysis would be based on the profile of a unit.
For Code Black responders – that is, security staff and the clinical team co-ordinator (the CTC) who had oversight of the Code Black team, there was five-day training which included individual restrictive practices and team restrictive practices.
Documentary exhibits relevant to staff training
Relevant exhibits were tendered.
PLA19 was the OHS Statewide Mandatory Work Practice Directive of August 2008. This directive stated that its purpose was to “ensure a consistent application of the Occupational Violence Risk Assessment across Queensland Health in accordance with [the] Occupational Violence Prevention and Management Implementation Standard …”
The directive acknowledged that “[w]orksite assessment and analysis of existing or potential occupational violence hazards is critical in determining appropriate actions to be taken to prevent, protect and manage occupational violence in the workplace”. It continued, “The assessment will also form the basis for information and training needs for staff”. It included as one of its key components the Occupational Violence Risk Assessment Tool (the OVRAT). It stated that an occupational violence risk assessment had to be re-assessed at least every three years or following a significant incident or change in the operational environment or activities. (My emphasis)
After prescribing the make-up of the risk-assessment team and its role, and the risk assessment process, the directive set out what was to be done with the assessment findings, which included preparing a summary report and action plan. Among other things, the report and action plan were to include “recommended controls, including occupational violence information and training plan”.
As to the implementation of control measures, the directive stated that control measures must “consider the hierarchy of controls and elements outlined in Occupational Violence Prevention and Management Implementation Standard (OHSMS 2-1#21) section 4.3 Controlling Occupational Violence Aggressive Behaviour Risks”. The directive also required a review of the implemented controls and risk assessment process on a planned basis, to ensure their effectiveness and that no new risks were introduced. Monitoring and review were to be conducted at least annually, or more frequently as determined by the level of risk identified and the effectiveness of control measures.
Exhibit PLA20 was an overview (PowerPoint) of the training provided on the first day of face-to-face “Aggressive Behaviour Management” training. The PowerPoint provided information about workplace aggression, risk management, intervention, and communication techniques. Slide 22 of the exhibit contained a depiction of a “use of force continuum”. The “use of force continuum” referred to levels of
reasonable lawful intervention depending on the perception of threat and/or injury. Safety was its primary focus, followed by other means of intervention, such as communication, disengagement, medical intervention, and de-escalation. The diagram depicted “physical response” and “intervention options” at the bottom, conveying that they were the last resort. Slides 28-35 focused on communication and related to what was described as ‘verbal skills’ training.
PLA36 was the Code Black procedure document. It was titled Code Black – Personal or Facility Threat: Gold Coast University Hospital. All staff were to be inducted into the procedure and compliance with it is mandatory. Of relevance to the present case, it stated/explained –
(i)A Code Black should be called when armed or unarmed persons threaten injury to others or themselves …;
(ii)There are four phases of emergency response: report, respond, lockdown or evacuate, and recovery and return;
(iii)A level 1 incident is, “A simple/localised incident that can be responded to with business-as-usual (BAU) resources and in accordance with BAU procedures” such as a request by clinical staff for a protective services officer to assist clinical staff manage patients when there is a risk of violence;
(iv)At all times, the response to Code Black incidents, including patient- assist requests, are to be clinically led by the CTC – or in their absence, by the Senior Clinician in the area in which the threat is occurring;
(v)Protective services officers are to provide support under the leadership and direction of the clinical lead;
(vi)A minimum of three security officers are to respond to a Code Black (see page 12);
(vii)Security officers responding to a Code Black should follow the directions of the clinical lead, and assist them to –
(A)Develop situational awareness;
(B)Assess what action needs to be taken to de-escalate or control the incident, ensuring the risk to the safety of all persons present is minimised;
(C)Liaise with medical and senior nursing staff in the case of incidents in Mental Health or medical wards, so that actions undertaken will be supportive of clinical treatment where appropriate;
(viii)Security officers responding to a Code Black incident should implement agreed planned actions under the direction of the clinical lead and provide support to the clinical lead as required.
In accordance with (iii) above, the incident with M was a level 1 Code Black incident.
The protocol spelt out the roles and responsibilities of mental health ward staff in the event of a Code Black (see page 45) but there was no equivalent for staff on other wards. The document implied that, on other wards, staff were expected to isolate/contain or evacuate (ICE) (if possible) – which does not involve physical contact with the person posing the risk of aggression.
OVRATs
PLA25 was the OVRAT for the SMU dated 8 July 2012. As Mr Macdonald explained, before an OVRAT was completed for a unit, a survey was sent to the unit so that relevant data about occupational violence could be collected. In 2012, the SMU was a relatively new, post-surgical unit (it opened in late 2011) and there was not a lot of relevant data available.
The 2012 OVRAT set out several “Key Risk Areas” and prompted an identification of hazards and risks in each of those areas and a consideration of whether existing controls were adequate. In several key risk areas, the potential risk identified was verbal and physical aggression.
As to the risks in the work environment, the OVRAT stated, as a potential risk control: “new start employee induction and orientation program addresses immediate safety from occupational violence needs relevant to work area”.
Under the heading “Controlling the Risk”, the OVRAT identified a “medium” level of risk of harm due to verbal aggression because of clients with mental health conditions. It noted as the current control: “New ward. Follow good work practices”.
It identified the risk of harm by physical aggression because of clients with mental health conditions as “medium” but left blank the space for recording current controls for that risk. It suggested, as one of three possible control measures, that employees complete an “appropriate level of training in the ABM [aggressive behaviour management] program as determined by OVRAT and existent controls”.
PLA26 was an OVRAT dated 15 August 2013 – intended as an annual review of the relevant risk on the SMU. However, it was not completed because it was determined
that the risk profile of the SMU did not warrant an annual review of its risk. The incomplete document was archived.
Mr Macdonald explained that the 2013 OVRAT differed from the 2012 OVRAT including because “standing risk control” was embedded into it (in the “Controlling the Risk” table), by stating, as the current control for the risk of harm due to physical and verbal aggression, “Code Black procedures and duress”. Also embedded was a requirement for “staff awareness” programs. (By “embedded”, Mr Macdonald meant pre-filled.)
PLA33 was the OVRAT for 17 October 2016. It “came about” because of “a change in the work area” – in that the dementia unit (GARU) closed and its patients were “re- distributed” including to the SMU. GARU consisted of patients with challenging behaviours.
The 2016 OVRAT stated that the SMU provided care “largely to elderly patients” and that within that patient group were “patients with cognitive impairment, acute delirium and significant functional decline”. The average age of a patient was 79, “with significant numbers of patients living with acute or chronic cognitive impairment”. It stated that the unit had had “an increased presentation of clients requiring specialling due to behavioural needs and changes in care modelling”. It added, “Staff have had limited exposure and education on such requirements, for these client profiles are not A typical (sic)” (my emphasis). “Individual patient factors occurring frequently” included “delirium, sepsis, ICU step down, Post MET call, drug toxicity and withdrawal, medically compromised MH clints requiring care”.5
Under cross-examination, Mr Macdonald agreed that the OVRAT was a critical document because it was the tool designed to identify the risk associated with a certain unit. It provided information about the training required for a unit. He explained that units like the emergency department or mental health units were “tier 1” areas, at which there was a higher risk of aggression. Staff in those areas were taught how to keep personally safe – but that was different to being taught how to restrain.
Mr Macdonald had in fact completed two OVRATs in 2016 – one in October 2016 and the other in December 2016. One referred to 1900 patient presentations and the other 2000. I assumed the OVRAT referring to 2000 presentations was the later document.
He clarified that an OVRAT should be undertaken, at a minimum, once every three years. He agreed that that had not occurred for the SMU. He agreed that the OVRAT was “very important”. He agreed that the 2012 OVRAT was, at best, provisional, because when it was done, the ward was new.
He agreed that by 2014, 2015 or 2016, “the situation was begging for an OVRAT … because all we’ve got on the books is a provisional one from July 2012”. It was put to Mr Macdonald that it then got “way worse” because patients were migrating from GARU to the SMU. Mr Macdonald acknowledged that those patients had challenging behaviours but said not all were transferred to hospitals and he did not know whether any ended up on the SMU because that was not something “within [his] remit”.
Mr Macdonald suggested that the information contained in the October 2016 OVRAT was likely to have been the case over the whole of the period to which it related, including March 2016.
He agreed that if, in the first three months of 2016, there were three to four patients a week coming into the SMU with behaviours, which increased the acuity of the ward (from an occupational violence point of view), then, without an increase in staff, it would be “fair to say” staff would be “stretched”.
Mr Macdonald accepted that, in March 2016, the average age of patients on the SMU was 79 years old. He agreed that there had been an “enormous increase” in the logged calls and Code Blacks over the 12 months ending in October 2016: 107 calls and 27 Code Blacks.
Security responses to calls for assistance
Mr Macdonald explained that a Code Black could be called by either someone hitting the duress button or by telephoning “222” – the “emergency call number” – and stating that there was a Code Black occurring.
The primary response to such a call would be (he said at first) “four PSOs and the clinical lead, so … the CTC … so we have clinical oversight, and that role is a nurse practitioner role … the team then split to have security doing the – the safe management of the individual, and the CTC doing the – you know, the – the clinical observations and liaising with … the clinical staff on the unit … as well”
(my emphasis). A moment later in his evidence he confirmed that it was four PSOs for a “code response” – but his evidence on this point changed a little later, as will emerge below.
He said fewer than four PSOs might be sent if there was a “7777” call made. This was a call which went through to the protective services supervisor. It was the call to make if there was “a challenging individual which (sic) has not been violent, but just been disruptive, and they can then just call for a soft approach”. Initially, two PSOs would be sent. Then, upon their arrival, they would make an assessment, based on the “handover”, about whether more resources were required.
Mr Macdonald acknowledged that the number of PSOs who turned up would depend on who was available at the time. For example, there might be multiple codes going off at the same time. He acknowledged that “to some extent” nursing staff might be left “holding the baby” as they awaited the arrival of security officers. But, he continued (my emphasis), “If – if processes are followed, I would say it would be very rare that … a clinical staff member would be involved in restraining a patient”. When asked to envisage a situation in which that would occur, he referred to wandering, confused or disoriented patients who had to be guided or directed back to their rooms. I note that those examples did not involve physical restraint.
He then said a Code Black would require three security responders. Two were required for a “soft” intervention. He corrected his earlier evidence about four security responders for a Code Black and said that a Code Black response would include three security officers and the CTC.
Interestingly, on page 13 of PLA33, it stated that the number of responders available, during business hours, for a duress call was “4 x PSO Code Black response with CTC”.
Mr Macdonald explained that a “7777” call might be required for someone who was “combative to care” and that a Code Black call was like calling “000”. There would be no second guessing of a Code Black call but upon the arrival of three security officers on the ward, the situation might be “downgraded” to a security assist call. If a request for assistance (rather than a Code Black) was made, then the number of PSOs sent would depend on the information provided during the request.
He said that a decision was made at “executive level” and through discussions with the Nurses Union that nurses would not be involved in restraints and that was why three PSOs attended at a Code Black.
The training of nurses to keep themselves safe
Mr Macdonald confirmed that where a patient had to be given medication against their will, the training of nurses was limited to instructing them about liaising and engaging with protective services staff. The first consideration was the safety of staff. If a nurse was faced with an urgent situation, they were to “isolate, contain, evacuate [the ICE approach] and wait for appropriate assistance”. He said, effectively, that that ought to be the case even if a patient was causing concern, wandering into areas where other patients were, and smashing things. He said that nurses were trained to isolate, contain and evacuate; and “when communication fails, your job – you know, they are to make themselves safe”.
In response to my questioning, Mr Macdonald explained that staff who warranted additional training, because they were in tier 1 areas for violence, were further trained in keeping themselves safe. They were not trained in patient restraint. In 2016, CTCs were taught how to restrain, because they were “part of the Code Black cohort” but registered nurses, ENs, and AINs, on any medical unit, are not taught how to restrain.
Evidence of Paul McGrotty
The defendant called Paul McGrotty. He was the security co-ordinator at Robina Hospital in 2012. He gave evidence about a “flipchart” which was on almost every desk in the hospital which provided relevant details for emergencies. On that flipchart, at the third dot point on a page headed “Personal Facility Threats”, it was stated –
Attract attention if possible. Another member to call Security Services on 7777 for support or call the hospital internal emergency number 222 and advise “Code Black”.
He said that, in 2016, staff had access to duress buttons which, when pressed, automatically paged the security team’s “Code Black responders” and informed them of the relevant location.
He gave similar evidence to that given by Mr Macdonald about the difference between a call to 222 and a call to 7777. A 222 call was to be made in an emergency. A 7777 call was a “normal” call to the security office. If there was no-one in the security office, it “cascaded” to the supervisor’s phone first, and if that was not answered, to “the number two” security phone and so on until it was answered. He said it was common for the security team to receive 7777 calls.
He explained that a reference to “phone” as the “reporting means” in the security incident document for 12 March 2016 meant that security was contacted via 7777.
Under cross-examination, he said that 7777 was used for “mundane” matters – things that did not have to be done straightaway: 222 was used if security was required straight away.
He was asked to given examples about 7777 matters, and he said –
Opening a door, lots of staff will call security because they’re trying to give a patient some medication and they’re worried the patient will refuse to take the medication. That’s just normally the mental health wards. So, the security will be there to [indistinct] while the nursing staff give the patient medication.
He seemed to differentiate between having security present for a patient who might refuse their medication, and the Code Black situation, where a patient had refused their medication and had to be restrained so that it could be administered.
He agreed that it might sometimes be the case that two security officers respond to a call to do something mundane but might themselves call a Code Black if they realise (upon arrival) that the situation requires the restraint of a patient and, therefore, three security officers.
He was asked whether security staff were trained not to proceed with a Code Black task if only two were present – and he said “It depends on the situation … Depends if there was a life at threat. I don’t know”. If no life was threatened, it was “possible” that the two security officers would “contain” the situation by holding the patient until a third arrived. But that was up to the staff involved. He said security staff would take “clinical direction” (from clinical staff) when dealing with a patient.
He said that, in 2016, if 7777 was called, then two security guards would arrive. If 222 was called, then three or four would arrive.
For what it is worth, the plaintiff’s lanyard (from 2016) contained a plastic card headed “Emergency Colour Codes”. It showed that black was the code for personal threats or violence6 and it contained an instruction to call 222 (the switchboard) for all emergencies, and if the switch was not available, to call 000. This was also the instruction on the front of the flip chart – that is, to call 222 in all emergencies. But the more detailed information about what to do in the case of a personal or security threat (a Code Black) in the flip chart instructed staff, in descending order, to: press the duress button; call Security Services on 7777 for support; call the internal emergency number, 222, and advise Code Black; then call police. Mr McGrotty agreed that that order did not reflect a descending order of best options. Nor, I note, was the information in the flipchart consistent with the notion that 222 was for Code Blacks and 7777 was for less urgent, matters.
Expert evidence about training of nursing staff in restraint
Dr Catherine Daniel – plaintiff’s nursing expert
Dr Daniel was asked to provide expert evidence about the sort of training nurses ought to receive in physical restraint. She provided a report dated 29 November 2021 under cover of an affidavit dated 27 January 2022. I will discuss the content of each separately, beginning with her report.
As will emerge, Dr Daniel’s primary position was that all nursing staff should be trained in the physical restraint of patients. She took this position because, in her opinion, it was not viable to direct nurses not to be involved in patient restraint – sometimes they just might have to be involved. Additionally, untrained clinical staff were not able to monitor the safety of the restraint applied by others.
In her report, Dr Daniel explained that, in all hospital and like clinical settings, physical restraint is used to manage risk; and where restraint is used, there is a risk to the person restrained and to the staff restraining them. She explained that training in restraint was often tiered to the needs of a particular clinical setting. She referred to guidelines from the Victorian Department of Health which included, as the key
And, for example, red was the code colour for fire; purple for a bomb et cetera.
principle, that “the response to clinical aggression should be a dual clinical and security response that is clinically led”. She noted that the Victorian guidelines included, among their minimum practice standards, the following –
Staff expected to participate in teams responding to clinical aggression should have a clear understanding of how the team comes together and the roles and responsibilities of all team members.
She reviewed the Queensland Health document entitled, “Aggressive Behaviour Management (ABM) for Healthcare Workers” and the document entitled, “Occupational Violence Prevention Training OHSMS2-60#38”. She noted that the Queensland Health policy made it clear that staff who had not been trained in restraint practices should not perform restraint.
She stated, at page 5 of her report, that all staff should have “core skills, both theory and practical skills to participate in the physical response team.” She continued, “You can’t rely on security, there may be two codes called at the same time and it takes 5 people to hold a person, one for meds, one for team leader”.
She observed (errors as per original) that there was “no doubt the nurses should not have participated in patient restraint with a team that have not done the training, both for her safety and for patient safety. However, nurses put the patient first and won’t allow the patient to be at risk and not intervene”.
She said that although it was common for patients to be restrained for the purposes of receiving intra-muscular injections, there was no training “in either the ABM course or the restrictive practices course for nurses who work in medical wards”.
She discussed, at page 7 of her report the “accepted procedures” throughout Australia to safely manage “a Code Black”. She said –
In clinical practice, the best approach to each clinical scenario is prevention and recognising contributing factors such as delirium and dementia so that these can be minimised where possible. When staff however can’t manage a situation, security are called. Early work on these processes is covered in code grey and Code Black guidance published in 2005. This guidance notes there are 3 core principles that underpin the structure and operation of a violence management team (VMT) …
…
1.The development and implementation of a written policy for job safety and security that is clearly communicated to all staff working with patients. Organisations should provide a clear definition of violence and aggression and clearly state policy response for workplace violence.
2.That all members of the VMT are educated in respect to organisational policy and trained in techniques used to contain violent incidents.
3.That the management of patient violence both in policy development and in staff training be informed by a framework that conceptualises patient violence as a clinical problem requiring a clinically driven response.
She explained that, in practice, there needed to be “a clear handover, roles allocated, safety concerns noted …”. Then a plan had to be developed including the detail of the way in which medication is to be administered and how the sharp will be removed from the area. The environment had to be “reviewed” to ensure there was nothing in it which could be thrown. Also, she said, one person “can’t” hold the two legs of another.
Dr Daniel was critical of the different approaches to security in mental health versus medical units. In her opinion, all nurses on wards with patients with dementia or delirium (in addition to nurses in high-risk environments such as emergency departments or mental health wards) should be trained to assist in an emergency team response. There were many clinical scenarios in which a patient may become agitated, such as after a stroke, or a brain injury. She referred to research which showed a significantly increased incidence of Code Black events7 in patients over 65 with delirium and dementia.
She was asked whether nurses should be directed not to participate in restraint in the following terms, “Should Queensland Health issue a clear directive for Registered Nurses on general wards not to participate in team or individual restraint of patients if its position was that only security staff and staff in the mental health wards were to be given training in team restraint?
Her answer in full was (errors as per original) (my emphasis) –
Although the research and Dr Daniel called it code grey.
Directing staff to not participate in restraint as they haven’t had the training would allow staff to remain safe however there will be situations where staff need to intervene, so this is not a viable option. It may not always be possible to wait for security and there are often not enough security staff to manage each situation i.e., 6 people to hold and provide medication to a person who is restrained.
Patients should be cared for by nurses who have had physical restraint training, the risk of injuries to patients is high and well known. Although the policy states that nurse should not participate in restraint if they have not had the training, when presented with a clinical scenario it is likely that they will have to assist in restraint to avoid harm to self or others … If nurses in the medical wards did not have training in restraint it is very hard to know what they are monitoring from a safety perspective, and they should be the clinical lead and advocate for patient safety.
Limiting restraint training to ED, mental health staff and security is not suitable if there are medical patients that require care.
The position that only security, ED, and mental health staff need physical restraint training does not address;
·It takes 6-7 people to hold a person (one to give meds, one for each limb, one for the persons head)
·Need to have gender balance, able to have females do restraint for cultural reasons
·There may be 2 codes called at the same time
·Evidence that emergency responses do occur on other wards (i.e. Delirium example)
One option may be to roster 6 security staff however if nurses aren’t aware of restraint principles, how are they monitoring patient safety, dignity, and aiming to reduce restrictive interventions. Also, this would mean nursing staff may authorise restraint in an emergency but not trained to participate in the team response.
Dr Daniel considered the Queensland Health Code Black procedure document. She observed that, in accordance with that document, the incident involving M was a level 1 Code Black. The response to it should have been clinically led, with protective services officers working under the direction and leadership of the clinical lead but, as Dr Daniel observed, untrained staff could not lead such a response.
In Dr Daniel’s opinion, given that M had been involved in two prior aggressive incidents, “it was known” that she might require a team response to her restraint on 12 March 2016: she was likely to resist her medication as she had done in the past.
The procedure noted that the CTC was to monitor risk if de-escalation did not work but it was not clear who was leading the incident involving M on 12 March 2016.
She observed that there was no physical restraint procedure to guide those involved in the restraint. In her opinion, a physical restraint procedure should note things like the risks to the patient, the duration of the restraint, who is to authorise it, and the techniques to be used. Consideration ought to be given to the gender, privacy, and dignity of the patient. In her opinion, upon their arrival on the ward, the security officers should have identified the clinical lead. Then, there should have been a discussion about risks to the patient and to staff; what the medication that was to be given; how the situation would be approached; who would hold what; who would hold the sharp; who would lead communication; and how the restraint would be released. According to Dr Daniel, the clinical lead ought to ensure that the staff involved were trained, fit, able and comfortable participating in the restraint. She also suggested that a seated restraint might have been appropriate.
Dr Daniel was critical of the 15 August 2013 OVRAT – including because it was not completed. The document recognised that some of the risk factors for aggression were present in the patients on the ward but staff were not relevantly trained.
In her affidavit, Dr Daniel considered more specific information about the SMU at Robina, based on the OVRAT of 17 October 2016. She observed that it was common to find high numbers of elderly people in medical wards to have cognitive impairment as the OVRAT revealed.
A reasonable hospital and health service would take reasonably practical (“reasonable”) precautions to minimise the risk that clinical staff were not injured by patients like M – appreciating that if such precautions were not taken, clinical staff might be injured in a not insignificant way. Precautions, in the form of relevant policies and procedures were in place. When patient restraint was required, the defendant’s procedures required a clear division between the role of security and the role of clinicians. Security personnel were to be involved in the safe management of the individual. The CTC was to make clinical observations and to liaise with clinical
This was not actually a necessary finding of his Honour’s – because the defendant could not afford a second carer anyway: see [97] and [98].
staff. Nurses were to reassure the patient restrained and to administer medication to them.
The evidence of the nursing experts nominated, as a reasonable precaution, the training of nurses on wards with high proportions of patients with cognitive vulnerabilities, such as the SMU, in the physical restraint of patients.
Of course, consistently with the defendant’s practice and procedures, nurses on the SMU were not trained in patient restraint – even though the number of patients on the SMU with behaviours had increased over 2016 and there had been an “enormous increase” in security/Code Black calls over the 12 months to October 2016.
The evidence of the defendant’s security officers, and the defendant’s procedures, supported, as a reasonable precaution, an explicit instruction to nurses (other than the CTC) that they were not to take part in the physical restraint of patients in any circumstances (subject of course to their entitlement to protect or defend themselves from physical harm) – leaving that task to security officers and deploying the Isolate/Contain/Evacuate approach while awaiting their attendance.15
I accept – indeed, no one suggested otherwise – that, at least in 2016, it was not reasonable to have security guards on the SMU/at the immediate ready to deal with the risk posed by M (or other patients with similar behaviours).
I accept that, in the face of a patient’s disruptive behaviour, it was reasonable to instruct nurses to try methods like distraction or communication first – with security officers to be called when that failed.
I find that a reasonable precaution against the foreseeable risk of injury to the plaintiff was to instruct her not to take part in the physical restraint of a patient (subject of course to her entitlement to protect or defend herself from physical harm) but instead, to leave restraint to the security officers trained in it.
I find that it was reasonable for there to be two “security” options when it came to dealing with a patient who was behaving disruptively, aggressively, or un-
15Indeed, arguably, the evidence of the defendant’s security officers, and the defendant’s procedures supported, as a reasonable precaution, an explicit instruction to security officers that only security officers were to be involved in patient restraint.
cooperatively (where distraction or communication was not enough) – the “soft” 7777 option and the Code Black option. Additionally, I find that it was reasonable to anticipate that a nurse (or other clinical staff member) choosing between those options might get it wrong in terms of their evaluation of the security “force” in fact required. The situation might not in fact call for a Code Black response; or the situation might in fact require more security officer “power” than first thought. A situation with any patient, including M, might escalate or de-escalate. A patient not thought to require anything more than security “presence” to settle might elevate between the time of the call and the arrival of security to the point at which the patient needed to be restrained.
I find that it was reasonable, in those circumstances, to require security officers to adjust. Indeed, in the case of an escalating patient, it was essential.
As Mr Macdonald explained, if two officers turned up because a 7777 call had been made and a “soft” response was requested, but upon their arrival it became clear that more “resources” were required, then the security officers could call for back up.
He went on to that say that, while there would be a lag between the calling of security and their arrival, if processes were followed, it would be very rare for a clinical staff member to be involved in patient restraint. The only circumstances in which he envisaged a clinical staff member being involved in patient restraint were a far cry from their involvement in restraining a resisting patient for the purposes of injecting them with medication. Rather, he referred to the rare instances of clinical staff guiding or directing confused patients back to their room. In the face of patient violence, nurses were taught to isolate, contain, and evacuate and wait for appropriate assistance – prioritising their own safety.
The effect of Mr McGrotty’s evidence was that – other than when a life was under threat – if patient restraint was required because a “Code Black task” arose, nurses were not to be involved. Two security guards would contain a patient until a third arrived.
Indeed, consistently with the defendant’s own procedures about the appropriate response to M’s behaviour – which was in fact “level 1” Code Black behaviour – the security officers who attended on the ward should not have restrained M on her bed
for the purposes of administering medication until at least one other security officer was present. They should have maintained the delineation between the role of security staff and clinical staff provided for in the defendant’s own procedures.
Breach of duty & causation
At the end of the trial, the plaintiff submitted that the defendant ought to be held liable for the plaintiff’s injuries for all or any of the following reasons –
(a)Its failure to respond appropriately to the Code Black which was called;
(b)Its failure to respond adequately, whether a Code Black was called or not;
(c)The failure of the security officers who attended to call for “back up”;
(d)The way in which M was released from restraint;
(e)The failure to adequately train the plaintiff in the physical restraint of patients – including a failure to train her that she should, wherever possible, leave restraint to security officers; or indeed, the failure to instruct nurses not to participate in the physical restraint of a patient under any circumstances.
As to (a), I found that a Code Black was not called – but there was a call made to security for assistance, prompting the appearance of two security officers on the ward.
As to (b), there was no evidence of the content of the call made to security before me, so it is impossible to say whether the response to the call was adequate or not.
As to (c) and (e), having regard to the defendant’s own procedures; and the evidence of Mr Macdonald and McGrotty; in the context of the evidence of the nurse experts, and the evidence about the training delivered to staff of the SMU, the two security officers who attended to M should have called for one or more extra security officers to assist in M’s restraint.
Once the two security officers became aware that M required restraint for the purposes of an injection of medication into her thigh, they ought to have appreciated that the situation was, or had developed into, a level 1 Code Black, which required a minimum of three responders in accordance with the defendant’s procedures (see PLA36). They ought to have called or, or arranged for someone else to call for, another security officer to undertake the restraint. Until that third officer arrived, they
should have otherwise contained M, in a manner informed by their training in patient restraint.
There was no evidence of any communication between the security officers and any of the clinical staff on the SMU about M’s restraint but – somehow – they knew she had to be taken to her bed and they must have known, before the plaintiff held down M’s legs, that M had to be restrained to receive an injection into her thigh. That (once it was known to them that M required restraint for the purposes of administering medication) was the latest point at which they ought to have called for (or arranged for someone else to call for) at least one additional security officer.
I find that it is more probable than not that, had the security officers called for backup because there was a level 1 Code Black incident on the SMU, at least one other security guard would have attended.
Trained in patient restraint, for the purposes of administering necessary medication to M, the three (or four) security guards would have held M’s limbs. The plaintiff would have adopted the role she had adopted on other Code Black occasions of reassuring the patient by speaking to her – whilst at M’s head, not at her feet. With Nurse X in charge of M’s medication, the plaintiff would have assumed the role of M’s ally or support – not her “jailer” and M would probably not have been motivated to behave violently towards her.
It was reasonably practicable to explicitly train the plaintiff to leave the restraint of a patient to security officers (it goes almost without saying, other than in a serious emergency when she had to act quickly to protect herself or others from physical harm). Such an instruction was consistent with the defendant’s relevant procedures. A reasonable employer in the defendant’s position would have taken such a precaution. The training the plaintiff received – essentially to put her safety first or the ICE method – did not convey clearly, if at all, that the plaintiff ought to leave all physical restraint to security officers.
I do not find that it would have been reasonably practicable to train the plaintiff how to physically restrain M, but given the make-up of patients on the ward, she should have been trained in the proper way for others to restrain M, so as to appreciate that
at least three security officers were required to restrain M in the circumstances; and (if necessary) to provide clinical oversight of the restraint by security officers.
I infer from the evidence that the plaintiff would have followed her training, and it was not submitted that she would not.
I conclude that, if the plaintiff had not been involved in the physical restraint of M – either because the security officers called for back-up, or because she was trained that M’s restraint was to be undertaken by security officers only – she probably would not have been injured by M on 12 March 2016.
As to (d), this assumes that M was appropriately involved in M’s restraint. I find that she was not. But for completeness, I find that there was inadequate planning for M’s restraint. No one took the clinical lead on it. The security officers did not assist any member of clinical staff to assess the action necessary to control the situation or to minimise the risk to the safety of others, including the plaintiff.
The defendant’s submissions do not provide an answer to the breach of duty. As I understand the defendant’s written submissions, it contended that it had done enough as a reasonable employer.
It submitted that, in accordance with its protocols, only those trained to take part in restraint would restrain a patient and two security guards were enough to protect others from the risk of injury posed by M.
It criticised the plaintiff for looking backwards from the injury and the way in which it was caused; and submitted (as of course I accept) that I am to look forward, to consider what a reasonable employer would have done. Of course, I am not to do so in the abstract. I am to consider the foreseeable risk of harm posed by M. As above, I find that – based on her past behaviour – there was a foreseeable risk that M would cause physical harm to someone in the plaintiff’s position whilst on the ward generally (and without a trigger) and when she did not wish to take her medication or was otherwise combative to care.
The defendant asserted that it assessed the risk of violence on the ward. Clearly on the evidence it did not. It did not complete OVRATs as required.
Regardless, I accept that it was reasonable to train the plaintiff that restraint was to be a last resort. But she was not trained, as she should have been, that she was not to take part in that restraint.
I do not accept the defendant’s submission that “although this was technically restraint but viewed prospectively it was not a situation where large amounts of force were to be likely involved to control the petite prone patient”. Three security officers had been required to control M on more than one previous occasion – which, as I understand the evidence, did not include restraint as invasive as one for the purposes of injecting M against her will.
The defendant submitted that there was no time to wait for a third security officer. The situation with M was “an emergency”. It submitted that it was not possible to wait for another security guard. I do not accept that submission. Having regard to the petiteness of M (a point emphasised by the defendant often) it is reasonable to infer that two trained security officers would be able to contain her physically (on her bed or otherwise) until a third arrived for the purposes of restraining her four limbs so that she could be injected with appropriate medication.
Quantum
Having found the defendant liable, I now turn to the question of quantum.
The critical issue is whether the plaintiff would have worked until retirement at 67 were it not for the workplace injury, or whether she was unlikely to have worked as nurse beyond, say, about 2026 (ten years from 2016) because of the consequences of the 2015 hybrid surgery and/or the state of her lower back/spine.
I have studied the evidence of the orthopaedic experts carefully, as set out above.
The plaintiff relied upon the evidence of Dr Labrom and asked me to prefer it to the evidence of Dr Gallie and Dr O’Toole.
The defendant submitted that Dr Labrom’s evidence had the flavour of advocacy about it – particularly in his efforts to back away from his first stated opinion that it was probable that the plaintiff’s previously asymptomatic sacroiliac joint condition may have been more predisposed to permanent aggravation because of the muscular deconditioning and outcome related to her technically successful hybrid surgery in
2015. Further, he was inconsistent about the role played by the “consequences” of the hybrid surgery in the plaintiff’s suffering a permanent injury to her sacroiliac joint in the workplace incident. And he was inconsistent in his description of the hybrid surgery (that is, it was either “relatively new and poorly understood”, or “not uncommon”).
It was not in contest that the plaintiff had widespread degenerative pathology in her sacroiliac joint. That did not mean that she inevitably would have become symptomatic (even if she had not been injured at work in March 2016), but I find that there was a degree of probability that her degeneration would progress to the point at which she was symptomatic. In so finding, I place weight on the fact that the plaintiff was relatively young for the hybrid surgery in 2015 – which meant that her degeneration became symptomatic at a relatively early age. Further, I place greater weight on Dr Labrom’s original opinion than on his later expressed opinions. His original opinion was formed in the context of his careful study of numerous reports about the plaintiff, and relevant clinical findings. It was thoughtfully expressed.
Having said that, I find – based on the plaintiff’s determination and drive and her repeated attempts to find a solution to her current pain – that the plaintiff would have done all she could to receive assertive treatment for any emerging sacroiliac joint symptoms as they emerged, and to work around them for as long as she could, so that she could remain in employment as a nurse.
But I proceed on the basis that her vulnerability to symptomatology would increase as her degeneration continued over time. And I find there was a degree of probability that the plaintiff would have reached a point in the longer term – that is, not as soon as by 2026 – where she experienced symptoms which made full time work impossible and which caused her to retire sooner than aged 67.
I make that finding on the basis that I do not consider the plaintiff’s movements on 12 March 2016 to be innocuous, or innocent – like hanging out the washing. Rather, I consider them to have involved a complex combination of forces – but not so complex as to be unlikely to occur again in her working life (either at work or not).
Having regard to the authorities referred to by the defendant, it is not incumbent upon me to predict when the plaintiff would probably suffer the onset of sacroiliac joint
symptomatology sufficient to render her incapable of earning income. But it is necessary for me to factor in the chance of that occurring in assessing the plaintiff’s damages.
General damages
I accept the plaintiff’s evidence of the consequences of her injury. It is a debilitating condition which causes her significant pain. Her physical pain and disability caused and sustains her psychiatric injury. In addition to depression, she is embarrassed by her condition; fears being out in public, in case symptoms emerge; and feels that, because of it, she is a burden to others, with nothing to offer. Additionally, she has been left with nerve symptoms after the sacroiliac joint fusion surgery.
In her claim for general damages, the plaintiff relied upon Dr Labrom’s rating of 15% whole person impairment and item 126 of the ninth schedule to the Workers Compensation and Rehabilitation Regulation 2014 (Qld) (the WCRR) – moderate pelvis or hip injury (ISV range 11 – 25).
She submitted that the top of that range was insufficient to take into account her mental health issues and the sensory disturbance in her right foot (a consequence of the sacroiliac joint fusion surgery) and sought an uplift of 15%. On that basis (working on an ISV of 29)16, which the plaintiff submitted was modest, she was entitled to general damages of at least $60,090.
The defendant submitted that only a 10% of whole person impairment was justified, having regard to Table 17-5 of AMA 5 (the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, upon which the Queensland guidelines for the evaluation of permanent impairment are based). The defendant relied upon the fact that the plaintiff did not need crutches to ambulate (other than immediately post-surgery).
The defendant acknowledged that the plaintiff has not had a good outcome from her injury. It agreed that her physical injury was best assessed under item 126 of the nineth schedule to the WCRR. It pointed me to one of the comments in that item (“An ISV at or near the bottom of the range will be appropriate if there is a DPI for
Rounding up, on the basis of a 15% uplift, which leads to an ISV of 28.75.
the injury of 10%.”). It submitted that the starting point therefore was an ISV of 11; and that a generous markup for psychiatric impairment would be a further ISV of 4 – leading to a provisional total ISV of 15. The defendant submitted that that ISV ought to be reduced because of the risk of the onset of sacroiliac joint symptoms anyway; and contended for a reduction to an ISV of 10. Very properly, the defendant informed me that Reddock v S T & T Ltd & Anor [2022] QSC 293, a decision of Jackson J, was the only case it could find in which an ISV had been reduced to take into account contingencies.
In arriving at an appropriate ISV, I have considered the schedule 8 matters. I consider the plaintiff’s pain and suffering and loss of amenity of life to be significant. I consider that an ISV of 10 fails to adequately take into account the significant impact of the injury on the plaintiff – physically and psychiatrically.
Taking all relevant matters into account, I assess the plaintiff’s ISV at 20 – leading to general damages of $25,150.
Past economic loss
I proceed on the basis that the plaintiff enjoyed her work as a registered nurse and was well regarded in that role. I proceed on the basis that her pay levels would have increased each year, and that her capacity to work more hours would have increased as the demand on her as a parent decreased.
The plaintiff contended for an award for past economic loss of $541,197.90. That was on the basis of her increasing to full time hours from the start of the school year in 2019 and working at least one week-end shift, and one or two night shifts per week.
The defendant contended for an award of $480,000 because of the uncertainty around full time work and promotions. The defendant submitted that that amount should be further discounted by 15% for the contingency of onset of sacroiliac joint symptoms, given that it is now seven years post injury.
I proceed on the basis that while there was a risk of the plaintiff developing sacroiliac joint symptoms anyway, the development of symptoms preventing the plaintiff from working at all – rather than symptoms preventing her from working for several days here and there – was not likely to have occurred by now, particularly given the good
results she achieved post hybrid surgery. However, I acknowledge a small risk of that occurring. I proceed on the basis that the plaintiff would probably have been promoted. However, there is some uncertainty around the plaintiff’s capacity to work full-time, with a child still at school. I have reduced the award contended for by the plaintiff by 12.5% per cent to account for these matters. That leads to an amount of
$473,548.16.
Interest on past economic loss
On the basis of a rate of 2 per cent, for seven years: ($473,548.16 – $109,791.04 (workers compensation benefits paid)) = $50,926.
Past Superannuation Loss
The parties agreed on a 12.75 per cent superannuation rate. That rate, applied to the past economic loss = $60,377.39.
Future Economic Loss
For obvious reasons, the plaintiff urged me to accept – without reservation – the opinion of Dr Labrom. She urged me to discount the opinion of Dr Gallie because he did not understand her mechanism of injury. She observed that, broadly, Dr O’Toole supported Dr Labrom, to the extent to which he confirmed that future predictions about when a degenerating joint may become symptomatic were fraught.
The plaintiff relied upon Dr Labrom’s opinion that the plaintiff’s asymptomatic condition would not have prevented her from working until retirement age were it not for the workplace incident. She submitted that the defendant could not show “if, when or to what extent” her degeneration would have manifested, “let alone that it would have detrimentally affected her earning capacity”. She submitted that I ought to reach the same conclusion as Fryberg J in French v QBE [2011] QSC 105 at [262] –
Conventionally amounts awarded in respect of future earnings are discounted for contingencies. The same applies to amounts awarded for future loss of support. Presumably the theoretical basis for doing this is that the method of calculation assumes more favourable factors than unfavourable ones; so a discount must be applied to restore balance. There is no evidence that [X] faced any abnormal contingencies in the future. Balance will be adequately restored by discounting the future awards by 10 per cent.
French v QBE is a very different case from the present case. Mr Crouch was killed when a car or cars ran over him. He was very intoxicated at the time. His de-facto wife brought a claim on behalf of herself and his four children. It is in that context that his Honour’s discussion of the treatment of contingencies (or there being no abnormal contingencies) is to be considered. In the present case, there is evidence which I accept that the plaintiff was at some risk of developing pain in the future – including debilitating pain – because of the condition of her sacroiliac joint and the potential consequences of her 2015 hybrid surgery.
The defendant referred me to the decision of Jackson J in Peebles v Workcover Australia [2020] QSC 106, and in particular to his Honour’s consideration of the contingency of a future disabling back condition in the plaintiff in that case. His Honour said (footnotes omitted) –
[131]However, in my view, there was also a significant prospect that had the plaintiff not suffered the particular harms at late May 2014 and December 2014, he would have suffered from a similar disabling back condition at some time after those dates. I acknowledge that Dr Licina’s opinion of a five year horizon for that to occur is necessarily an assessment of an uncertain past or future hypothetical event, and that, as Associate Professor Fearnside explained, as the future played out the event may never have happened. But as was said in the leading case of Malec v JC Hutton Pty Ltd, it is not unusual in assessing the damages to be awarded for a past hypothetical or future event, for the question of the future or hypothetical effect of an injury or degeneration not to be susceptible of scientific demonstration or proof.
[132]The approach required by Malec is:
But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into
account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.
[133]In my view the probability that the event of the plaintiff suffering a similar disabling back condition to the harm that he did suffer as a result of the employer’s negligence is that it is as likely as not that he would have done so over the period of the losses he has and will have suffered as a result of the employers negligence. It is a reasonable inference from Dr Licina’s evidence that the longer the period from the date of the harms in fact suffered that is considered, the greater the likelihood that a similar disabling back condition would have been suffered. However, having regard to the methodology proposed in Malec, I do not consider it is incumbent upon the court or the correct approach to attempt to formulate a date by which a similar condition would have been suffered. The correct approach is to consider the percentage prospect overall of the event which would reduce the damage suffered from the defendant’s negligence and to decrease the amount of the award of damages accordingly.
The defendant did not contend that the plaintiff had any residual earning capacity. It accepted that she might have worked for another 20 years – had the workplace incident not occurred.
Applying a discount over 20 years produced an amount of $991,041.30. The defendant invited me to discount that amount by 50 percent. It referred me to paragraphs [18] – [20] of the Court of Appeal decision in Peebles [2021] QCA 21, in which, after noting that Jackson J’s view was that there was a 50 per cent chance that such a similar condition would never have occurred, McMurdo JA said –17
[18]If the judge’s discounting of future economic loss has been wholly attributable to only that contingency, the discounting would have been excessive. As the appellant submits, the application of a 50 per cent discount, for this contingency alone, would aptly represent a finding that the applicant was certain to have been fully incapacitated by halfway through the relevant period
With whom Fraser JA and Mullins J (as her Honour then was) agreed.
[19]That submission may be accepted, as far as it goes. However, for the component of future economic loss, it was appropriate to apply a discount for the other contingencies which could have affected the appellant’s income. In that respect, a discount of 10 to 15 per cent would have been appropriate. His Honour was well aware of the need for such a discount, and the rate which he applied, namely 50 per cent, was “for the contingencies including the hypothetical event that the plaintiff in any event would have suffered a similar disabling back condition”. Consequently, it can be seen that the extent of the discount, for that particular contingency, was not as high as 50 per cent, as the appellant’s argument at times seemed to suggest.
[20]The selection of the appropriate rate of discount involved a discretionary judgment and a range of rates was open. The trial judge could have applied a lower discount rate for future economic loss, but the question is whether he was obliged to do so. No specific error of principle is identified in the appellant’s argument on this question. Instead, the argument is that the discount of future economic loss was so unreasonable that the Court should infer that an error has been made. In my conclusion that inference cannot be made, and it was open to the trial judge to impose that discount rate on future economic loss.
The defendant referred me then to Jackson’s J respectfully made statement, in Reddock v S T & T Pty Ltd & Anor [2022] QSC 293 at [190] that the Court of Appeal’s understanding of the 50 per cent discount was not correct. His Honour said –
With all respect, that is not what a discount of 50 per cent for a contingency on the possibilities that an incapacitating event will be suffered at some point in time over a relevant period represents at all. If the risk is of an event that might happen on any given day because of the forces that will or may be experienced by a physical structure is one that is more likely to happen over a longer time period of exposure to those forces having regard to the pre-existing vulnerability of the structure, and is also affected by the likelihood of increasing degeneration in the structure that may contribute to likelihood of the event, to say that there is a 50 per cent discount for the chance of the event occurring over the whole period does not say there is a 100 per cent chance of the event occurring as at the half way point of the whole time period. Nor does it imply that there is no chance of the event occurring before that day, which is another necessary assumption for the suggested arithmetical identity.
The defendant submitted, respectfully, that Jackson J “must be right” and that it would be appropriate to discount the plaintiff’s future economic loss by the same percentage (that is, 50 per cent). That resulted in an award of $495,520.65 – rounded up to
$500,000. The defendant assumed net weekly earnings of $1,448.05.
The plaintiff submitted that there ought to be no discount for the possibility of her suffering a similarly disabling condition in the future. She invited me to allow for a reduction of 10 per cent for contingencies only. By her calculations, that would result in an award of $1,440,169.16 for future economic loss. The plaintiff’s calculations were based on the plaintiff working a 40-hour week, from 2019, including an 8-hour Sunday shift and a 10-hour night shift each week. Her calculation was based on net weekly earnings between $1,209.75 and $2,190.19.
I have reached an award for future economic loss by starting at the scenario proposed by the plaintiff but discounting it for contingencies including, but not only, the contingency that she might not work a 40-hour week plus Sunday and weekend shifts from 2019 until she was 67; and the contingency that she might, in the future, suffer from pain symptoms because of pre-existing degeneration and/or the consequences of her hybrid surgery her which might shorten her working life.
I consider a discount of 50 per cent to be appropriate. To further elaborate: I have based that broadly on the vicissitudes of life (other than issues arising with the plaintiff’s back/spine); the contingency that the plaintiff might not have worked full- time with penalty shifts every year of her working life from 2019 until she was 67 – either because of demands upon her as a mother (or in later years, potentially, a grandmother) or because she might chose not to work that intensely, particularly in the last ten years or so of her working life; and the contingency that she might not have been able to work at that intensity, or at all, until she was 67 because of the pre- existing state of her sacroiliac joint and/or the consequences of the hybrid surgery. Rounding, that results in an award of $800,000.
Future superannuation
The plaintiff said the parties agreed that the applicable rate for future superannuation would be 12.75 per cent – yet the defendant invited me to apply a rate of 11 per cent. I could not find a reference to an agreed rate in the “List of Issues not in Dispute” document. Therefore, I applied a rate of 11.88 per cent: $95,040.
Fox v Wood damages
The parties agreed upon $21,821 for this award, which I will allow.
Past expenses
The parties agreed on an amount of $78,556 for past expenses, which I will allow.
Future medicals
The plaintiff claimed an amount of $14,850 (allowing for a 10 per cent reduction for vicissitudes) for future psychiatric and psychological counselling. That assumed 20 sessions a year with a psychologist for 3 years plus five sessions with a psychiatrist.
She sought a global sum of $5000 to cover monthly appointments with her general practitioner for medication and the management of her symptoms.
She claimed for monthly physiotherapy sessions (discounted by 10 per cent) at
$2,055.54.
She claimed for reviews every three months for two years by a pain specialist (discounted by 10 per cent).
The defendant’s position was that the plaintiff would receive no benefit from future psychiatric or psychological support. I could not find the defendant’s specific response to the monthly general practitioner claim – but I note that it conceded travel expenses associated with the plaintiff’s attendance on her general practitioner. It contended that physiotherapy had not provided the plaintiff with an appreciable benefit in the past. Nor had the plaintiff’s previous sessions with a pain specialist offered apparent benefit.
I proceed on the basis that the plaintiff’s mental vulnerabilities were a consequence of her physical condition and the key to mental relief was improvement in her physical condition – which did not appear possible. However, psychological therapy – rather than psychiatric medication and treatment – might help the plaintiff deal with her situation in the future. I accept that she will require more frequent appointments with her general practitioner than would have been the case were it not for the workplace incident. The plaintiff has obviously not achieved relief via physiotherapy or pain management, but access to relevant specialists might be required at particular times in her life, for example, when her pain is more acute, or the medication she is on fails to provide adequate relief.
I consider it appropriate to award a global sum of $15,000 to cover the plaintiff’s future medical expenses.
Future travel expenses
I award $2000 as a global sum for future travel expenses (noting that the defendant conceded a sum of $926.17).
Future pharmaceuticals
The plaintiff claims $48,000 for future medication – including on the basis that she resumes anti-depressant medication. As the defendant points out – there was no evidence about the plaintiff’s consumption of some of the medication the subject of this award.
Also, anti-depressants have not worked in the past. While the plaintiff may well try them again, I am not persuaded that she will continue to take them for the rest of her life.
Also, the amount claimed assumes that the plaintiff will pay full price for her medication for the rest of her life and that she will need all of it for the rest of her life.
The defendant asked me to factor into the calculation of this award that the plaintiff’s out of pocket for past medication was $2000 (for the seven years post incident).
I consider it appropriate to award the plaintiff $12,000 as a global sum for her future medication.
Total award
The defendant is liable for the plaintiff’s injuries and is to pay the plaintiff the sum of
$1,634,418.55.
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