Armstrong-Waters v State of Queensland [2020] QDC 66

DISTRICT COURT OF QUEENSLAND CITATION: Armstrong-Waters v State of Queensland [2020] QDC 66 PARTIES: LANCE DOUGLAS ARMSTRONG-WATERS (plaintiff) v STATE OF QUEENSLAND (defendant) FILE NO/S: 191 of 2015 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Cairns DELIVERED ON: 24 April 2020 DELIVERED AT: Cairns HEARING DATE: 25, 26 & 27 February 2019 & 29 April 2019 JUDGE: Morzone QC DCJ ORDER: 1. Judgment to the plaintiff against the defendant in the sum of $357,073.49 including interest. 2. The defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) on and from 13 October 2015 to be assessed on the standard basis. CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORTS – REMOTENESS AND CAUSATION – whether the defendant breached its duty of care to take precautions against a foreseeable and not insignificant risk of injury to the plaintiff – whether the relevant breach of duty was a necessary condition of the occurrence of the injury – where the absence of sufficient adequate post-incident response manifested in a more severe injury – whether it is appropriate for the scope of liability of the person in breach to extend to the injury caused – assessment of damages DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORTS – MEASURE OF DAMAGES – PERSONAL INJURIES – where incapable of returning to work in a high-risk workplace – where able to -- 1 of 56 -- 2 return to remunerated employment – where there is a graduated improvement in earning capacity – assessment of damages Legislation Civil Liability Act 2003 (Qld) s 55 Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305E, 305J Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) Cases Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Blatch v Archer (1774) 98 ER 969 Coca-Cola Amatil (NSW) Pty Ltd v Pareeze [2006] NSWCA 45 Corbin v State of Queensland [2019] QSC 110 Czartyrko v Edith Cowan University (2005) 214 ALR 349 Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Morgan v Costello [2004] WASCA 260 Public Transport Corporation v Sartori [1997] 1 VR 167 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317 Vairy v Wyong Shire Council (2005) 223 CLR 422 COUNSEL: C Ryall for the plaintiff B Charrington for the defendant SOLICITORS: Maurice Blackburn for the plaintiff Mullins Lawyers for the defendant -- 2 of 56 -- 3 [1] The plaintiff sues for damages for psychiatric injuries after being assaulted by a patient in the emergency department of the Cairns Base Hospital where he was working as a registered nurse on the night of 19 January 2014. [2] The plaintiff was born on 21 December 1960 and was 53 at the time of the incident. He was then employed by the defendant as a registered nurse at the Cairns Hospital pursuant to a contract of service. He had a history of exposure to trauma during his working life as a Navy medic and Navy medical officer, as a paramedic in the United Kingdom and the events in the emergency department of the Cairns Hospital about which he sought systemic changes. [3] The defendant provided health services in the Cairns region through its agency Queensland Health. The defendant owed a duty to the plaintiff to take reasonable care to prevent a foreseeable risk of injury to the plaintiff while he was performing his work duties. The defendant had developed guidelines for post-incident management strategies, it had determined it should review incidents of aggression and defined trends and on an ongoing basis formulate reasonable preventative measures in respect of identifying risks. The guidelines provided for suitably qualified people to carry out the roles and functions of coordination of post-incident response and to conduct post-incident debriefing. [4] The genesis of the plaintiff’s case is the incident between him and a male patient in the fast track area in the hospital emergency department waiting room from about 8:21 pm on 19 January 2014, followed by the nature and extent of his interaction with his superiors in the aftermath. [5] The plaintiff contends that after he removed a blanket from a male patient, the patient stood, verbally threatened, and punched him; then the two scuffled on the floor until the plaintiff got hold of the patient, and forcibly removed him out of the emergency waiting room. When the plaintiff returned, he briefly spoke with Ms Hood (clinical nurse and team leader) and then Ms Kenneally (clinical nurse consultant) at about 8:30 pm. The following morning, he presented himself to triage and he spoke with Mr Brose (acting nurse unit manager). The plaintiff then proceeded to apply for WorkCover, with the assistance of Ms Spalding, and attended a General Practitioner, Dr Ireland, for a certificate for that application. [6] The plaintiff claims that the defendant breached its duty of care to protect the plaintiff against the risk of an assault by a patient in the emergency department of the hospital and the risk of psychological injury in the aftermath of an assault. He asserts that as a consequence of the assault and the later mismanagement by superiors in the aftermath, he suffered personal injuries being a psychological injury of post-traumatic stress disorder, and physical injuries to his knee, shoulder and lower back. The plaintiff claims almost $800,000 for loss and damage for those personal injuries. [7] There is no dispute that the defendant, as the plaintiff’s employer, owed him a non- delegable duty of care to take reasonable care to keep him safe at work and protect him from known or foreseeable risks.1 The obligation to provide a safe system of 1 Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353; Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424 at 439; Hamilton v Nuroof (Western Australia) Pty Ltd (1956) 96 CLR 18 at 25; Kondis v State Transport Authority (1984) 154 CLR 672 at 680, 687-688 per Mason J. -- 3 of 56 -- 4 work extends to security of the plaintiff’s personal safety2 and in the circumstances here, the duty extends to guarding against criminal acts of third parties by controlling the employee and the system of work that is followed.3 [8] Whilst the defendant appreciates that it owed such a duty to its employee, it maintains that it is not liable for the plaintiff’s injuries because he has failed to prove any breach of duty (as well as causation) in circumstances where an employee provokes an assault by rigorously removing a blanket from a sleeping intoxicated patient. [9] The defendant contends that the plaintiff has failed to prove his case because: 1. Of the absence of any evidence, expert or otherwise, that an alternative system ought to have been in place to manage the risk of assault by patients, a system which would have prevented the assault from occurring; and 2. The evidence from Ms Hood, Ms Kenneally, Mr Brose and Ms Spalding that in the period following the subject incident, the plaintiff received support via multiple inquiries or advice as to: (a) Whether he was fit to continue working; (b) Whether he required medical attention by triage; (c) The seeking of medical attention by a GP; and (d) The availability and process associated with the Employee Assistance Scheme; and 3. The defendant submits that the preponderance of evidence is that, irrespective of any reaction to the incident by any employee of the defendant, the plaintiff’s injury had been triggered by the occurrence of the incident per se. ISSUES [10] The determinative issues in the proceeding are: 1. Did the defendant breach its duty of care to take precautions against a foreseeable and not insignificant risk of injury to the plaintiff? 2. If there has been any breach of duty, was the relevant breach of duty a necessary condition of the occurrence of the injury (or did it make it more severe) and is it appropriate for the scope of liability of the person in breach to extend to the injury so caused?4 3. If the defendant is liable, what is the assessment of damages? [11] I have concluded that the defendant did breach its duty of care to take reasonable precautions against a foreseeable and not insignificant risk of injury to the plaintiff, 2 Public Transport Corporation v Sartori [1997] 1 VR 167 at 173; Karatjas v Deakin University [2012] VSCA 53 at [25]-[31]. 3 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [29], [35], [42], [108]- [109], [138]-[141]. 4 Workers’ Compensation and Rehabilitation Act, s 305D(1). -- 4 of 56 -- 5 and in the circumstances of this case, such breach of duty was a necessary condition of the occurrence of the plaintiff’s injury, and did cause the plaintiff to suffer more but for the breach. [12] Therefore, I give judgment to the plaintiff and assess damages accordingly. FACTUAL DISPUTES [13] The case involved critical factual issues about the incident with the patient, the conversations shortly after the incident and the next day, and resultant injuries. I deal with these first. What happened in the emergency department incident on 19 January 2014? [14] On the night of 19 January 2014 the plaintiff was at work as a registered nurse in the emergency department of the Cairns Base Hospital. [15] The plaintiff testified that he was doing his usual work in the fast track area, which is a subacute area of the emergency department off the waiting area. Its main duty is to quickly treat lower category patients, treating and discharging within the four hour time restraints. He described the relative patient density in the associated area, layout and seating arrangements. He had started work at 1:00 pm and was due to finish at 9:30 pm after a handover at 9:00 pm. [16] The plaintiff generally described the incident in his examination in chief as follows:5 “Now, this case is – it’s admitted there was an incident between you and a patient. Can you tell us about the events leading to that incident?---At approximately 20.15 I’d gone out of the fast-track area, through the double doors or security doors from fast-track to waiting area. I picked up a patient to bring through for treatment. On the way back I’d mentioned to two patients that they were next on the waiting list to be seen. Can they get ready, etcetera? I removed the blankets to make sure that they actually acknowledged me. They sat up. I went back into the - - - Can I ask you just to stop there?---Sorry. You told the patients that they were - - -?---Next on the line. Yes. Do you – did you have any conversation with them?---The conversation was, if I remember was, a Rodney Pascoe – I just said to Rodney, well, you’re next. I think he was complaining he was hungry. I just said he’d be next. He would be treated very shortly. All right. Can you just – so you say you removed some blankets. Do you recall what position – how they were sitting or the time you came out?---What I recall is that, they were basically laying down on a bench in opposite directions. Feet to feet basically. So - - - Okay. If you can take it from there. So you left them?---Yeah. What – what I did was, I removed the blankets, one from the head section, one from 5 T1-29/1 – T1-30/25. -- 5 of 56 -- 6 the feet section, because they had pulled the blanket all the way over, and then I walked back to the area. When I came back again they’d pulled the blankets back over themself again and they were actually – pulled the blankets over their heads. When I removed the blanket from them - - - Can you just take us from there? So you’ve come back to them?---Yeah. Can you take it in order? What did you do when you first came back towards them?---Right. When I came back towards them I verbally said, “Are you ready, Rodney? I’m coming to take you.” And - - -?---Or of that effect. I was going to take him through to the – the treatment area. And then what was the next thing that happened?---Well, I started to remove the blankets. As I did that I – he became agitated. He called – he basically said, “I’m going to kill you, you white cunt.” And he – he sprung up and attacked me. In what way was he attacking you?---He physically barrelled into me. He was swinging his fists, etcetera. I hit the ground, came down quite heavily. I quickly had to try and stop his attack. After that – sorry. How did you – did you – what steps did you take to stop his attack?---Basically tried to defend myself. Then why – when I went down to the ground I managed to bring his arm up around his back in a pinion position and I was able to more control his attack on me. And was – were you or he saying anything or doing anything at that time?---All the way throughout that he keep – kept saying that he was going to kill me. Calling me a white C and all this type of thing. And he was going to kill me and my family and everyone else. Once you had him restrained what happened from there?---I – once I had him restrained I tried to get him to calm down. He continued to struggle, etcetera. So I started to walk him out of the department towards where the security area is. I got to around about where the reception area is. By this time my phone – the ward phone was smashed on to the ground. My personal phone was also on the ground. Utility belt – utility holder was on the ground. I then asked reception, “Can you call security?” Did - - -?---And then I proceeded to come out to the right and through the main exit. As soon as I got out the main exit security had followed me out and I handed him over to security. He continued – himself and the other patient that had been laying down, continued to be aggressive and threatening to kill me as well. So - - - What occurred after that?---After that I – I handed them over to security. I came back through the door. …” -- 6 of 56 -- 7 [17] When later asked why he took the patient outside the emergency department while under some control, the plaintiff said:6 “The patient continued to be highly aggressive. He continued to make threats that he wanted to kill me. I tried to get him to calm down. He refused to. And as I exited the department, I knew that the security office was closest to the triage desk, and hopefully I would get assistance from security by then.” [18] During cross examination the plaintiff maintained that he did not have complete physical control over the patient throughout the incident, saying that “… I did not have physical control over him. He continued to struggle. He continued to threaten to kill me,” and he later added “I feared for my life.”7 [19] The plaintiff’s evidence in chief about the incident, perhaps refreshed by the replay of the CCTV footage, was diluted from his earlier recollection, subject of cross- examination, as contained in two earlier sworn statements wherein he recalled that: 1. He shook the first patient’s foot in his attempt to wake him; 2. He then pulled the blanket back from the first patient’s face to check his breathing; 3. The first patient then woke, and sprung to a seated position, before flailing several punches at the plaintiff from his seated position; 4. The first patient then got to his feet and continued to throw punches at the plaintiff; 5. The plaintiff was then struck by one of the punches on the shoulder and knocked to the ground; 6. When on the ground, the patient continued to punch the plaintiff before jumping on top of him; 7. A wrestle then ensued, in which the plaintiff gained the upper hand and was able to restrain the patient; 8. The plaintiff had gained an arm lock on the patient and was able to raise him to a standing position and force the patient to walk through the emergency department waiting room to the front door, with the patient resisting and attempting to free himself from the restraint during this manoeuvre; 9. A security guard arrived and assisted the plaintiff in removing the patient from the hospital. [20] There were loud noises and voices heard by Ms Kinnane the administration officer at the nearby nurses’ station. The plaintiff had the presence of mind to ask her to call security as he passed with the patient. 6 T1-38/41-46. 7 T1-73/11. -- 7 of 56 -- 8 [21] The CCTV footage shows: 1. The plaintiff initially interacted with the two male indigenous patients at about 8:16 pm as they lay on the waiting room chairs under blankets; 2. The plaintiff without warning, swiftly, abruptly and forcefully removed two blankets off the sleeping patients, one from each respective patient, without any other overt interaction. The plaintiff then returned to the area from which he came; 3. The two patients seemingly heavily intoxicated returned to their slumber. They lay down and again covered themselves with their separate blankets; 4. About 4 minutes later, the plaintiff returned and again without warning, swiftly, abruptly, and forcefully removed each blanket from each patient. The first patient slowly and unsteadily sat up while the plaintiff’s back was turned removing the other man’s blanket, but when the plaintiff returned to his vicinity, the patient sprung up to his feet and appears to throw one punch toward the plaintiff; 5. The plaintiff and the patient somehow both fall to the ground. The plaintiff apparently landed on top of the patient and they wrestled on the floor as the plaintiff got hold of the patient in an arm lock from behind and raised him to a standing position. 6. The plaintiff maintained the arm lock as he escorted the smaller patient in a frogmarch fashion through the waiting room and out of the external door of the hospital, followed by a security guard. 7. The plaintiff later returned and walked through the waiting room. [22] The CCTV footage provided sufficient vision of the incident from different perspectives, except at the critical time when the standing punch was thrown and the wrestle on the floor, an object in the foreground obscured any vision of contact with the plaintiff, and there is no audio in the footage. With these limitations, the plaintiff submitted that the court should be cautious of such evidence which depends on the quality and clarity of the footage.8 [23] The plaintiff submits the video footage shows the patient ‘protagonist’ getting up and throwing one or two punches and then falling to the floor with the plaintiff where the plaintiff gets the upper hand and removes the patient from the hospital. [24] When I compared the plaintiff’s past and present recollection with the CCTV footage, it became very clear that his accounts are seriously flawed. The plaintiff did not show any particular care by shaking the patient’s foot or pulling the blanket from the patient’s face. He accepted that his early statement, made without the benefit of the video, was wrong in this respect. The CCTV footage shows that he removed the blanket from the patient’s body in one swift, continuous and aggressive motion. The patient did not spring to a seated position or throw any punches while seated. He seemed to rouse from an intoxicated sleep in a slow and unsteady manner; first sitting 8 Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54]-[55] & [126] per Sackville AJA (McColl JA agreed). -- 8 of 56 -- 9 then pausing briefly before standing and punching. The patient did not throw multiple punches. He is seen to throw one punch with the trajectory toward the plaintiff. However, the punch did not seem to cause the fall nor can I see any other significant punches during the wrestle on the floor. The patient did not jump on top of the plaintiff while on the floor. The plaintiff quickly and effectively gained a controlling hold of the patient’s right arm after a very brief wrestle on the floor. The patient showed no resistance as he was marched by the plaintiff through and out of the waiting room. [25] The defendant is critical of the plaintiff’s versions as being so detailed and too dramatically different and skewed in his favour, to represent a genuine mistake and other collateral motives. I disagree. Whilst the plaintiff’s historical recollection is demonstrably distorted, unreliable and exaggerated; I think it was honestly held and commensurate with his subjective perception of the traumatic events as it quickly unfolded, his rumination and subsequent events. He gave his evidence earnestly and consistently with his condition and he readily expressed his inability to recall various matters. Even so, the plaintiff was shown to be an unreliable historian which negatively impacts on his credibility for this critical incident and generally. Due to this assessment, I do not accept the plaintiff’s evidence about the incident except where it is consistent with the evidence drawn from the CCTV, other witnesses, and contemporaneous notes. [26] The patient presented warning signs of impending violence including being uncooperative when first approached, increased tension by demands of readiness and removing the blankets, perceived threatening or verbally abuse, signs of intoxication, and a history of violence. [27] In the face of these indicators, the plaintiff, for the second time without warning, abruptly and forcefully removed the blanket from the apparently sleepy intoxicated patient, such that the patient awoke. I do accept that the patient posed an immediate threat from the start of the removal of the blankets as the plaintiff described, although he did not suddenly spring to a seated position or throw any punches while seated. Instead, there was a time lag between the moment the plaintiff removed the patient’s blanket and the moment the plaintiff returned to that patient after removing the second man’s blanket. In that time the patient seemed to rouse from an intoxicated sleep and rise in a slow and unsteady manner from his lying slumber to a seated position, while the plaintiff’s back was turned removing the other man’s blanket apparently oblivious to his catalytic conduct. [28] The plaintiff was unlikely to have anticipated what was about to happen to effectively call for help or retreat and minimise the risk of putting himself in harm’s way by returning to the patient’s side. [29] Once the plaintiff returned to the patient’s vicinity he suddenly stood and threw a single punch at the plaintiff. This is when he became verbally threatening and simultaneously violent, which I think is consistent with the raised voices reported by Ms Kinnane and Mr Taylor.9 Having regard to the beginning and end of the punch’s trajectory, as shown in the CCTV footage, it is likely that the patient connected with the plaintiff. The two then fell to wrestle on the floor until the patient was restrained 9 Exhibit 1, Doc. 1, p 1. -- 9 of 56 -- 10 and removed by the plaintiff. It is unclear whether the patient landed more punches before being secured in the arm lock by the plaintiff. [30] I accept that the plaintiff did momentarily fear for his life and was forced to legitimately defend himself quickly, instinctively and effectively, apparently employing the restraint hold in accordance with his aggressive behaviour management training. Once he got the control hold of the patient’s right arm, after very a brief wrestle on the floor, the plaintiff was able to quickly march the patient out of the waiting room and put him in charge of security before returning. What happened between the plaintiff and Ms Hood and Ms Kenneally in the immediate aftermath of the incident? [31] The plaintiff briefly spoke with Ms Hood and then Ms Kenneally shortly after he returned to the emergency department after having ejected the patient. [32] The plaintiff did not have a complete recollection of all the words spoken but particularly recalled perceiving that his superiors were hostile towards him after returning to the fast track area. He testified:10 “What occurred after that?---After that I – I handed them over to security. I came back through the doors. I was trying to find my phone and everything else. Security helped me basically pick up all the pieces. I went past a patient – or sorry, two visitors that actually asked me, “Am I okay?” They witnessed it. I went through the security doors back into – back into fast-track, to where the nursing station is at fast-track. Shortly after that the CNC came through. She was quite hostile. Can you identify the CNC by name?---Elizabeth there. Yes?---She came to me. She was quite hostile. She was mentioning words like “Why did you restrain that patient? You had no right to restrain him. You’re in a lot of trouble. I should call the police.” HIS HONOUR: And you said that she was a CNC was it?---She was a clinical nurse. Yeah. In charge of the department at that time. Well the – she was the nurse co-ordinator. Right. So what would CNC stand for?---Clinical Nurse - - - Co-ordinator?--- - - - Co-ordinator. Yeah. MR RYALL: The – had you spoken to anyone else?---After the – after that I had Victoria Kenneally – she came very shortly after that. After Elizabeth left Victoria stormed in. She was even more hostile still. And just if you can – what makes you say she was hostile? What was she doing or saying?---Well, she was – she was basically saying that, “How dare you take a patient out of this department. You have no rights. You assaulted the patient. I’m disgusted, etcetera.” 10 T1-30/25 – T1-31/30. -- 10 of 56 -- 11 Do you recall saying anything to her?---I – what I recall saying to her is, “I was attacked by this patient. I was trying to defend myself. And I used the training that I’d been given to defend myself.” Do you recall any response to your argument that you had followed training?---Sorry? I’m asking you, did she respond when you said you had followed training?---She just said that, “No. You should have backed away.” And I said to her, “I couldn’t back away. I was under attack.” So – and she just didn’t want to listen to a word I said. And how did – was there anything that brought that conversation to a close?---She just simply said, “Make sure you fill out all your paperwork before you go. Make sure you hand over your patients to the next shift.” And then just basically stormed out. …” [33] The plaintiff later explained what he did to complete the paperwork:11 If you can start from there and take us into the night from there - - -?---All right. - - - as to what you did. Firstly, was there anything – did you do anything at the hospital before, I presume - - -?---Before I had to leave – finish my shift. I had to complete all the online paperwork, the critical incident forms. I had two different forms that were downloaded off the laptop – off the screen on the nursing station. I had to fill those in. I had to do a – a patient handover for fast-track and the other beds within in the fast-track area. All right. Can I – sorry. And so those – those forms you were talking about, they’re entirely online, that – the incident report, one - - -?---You’ve – you can print them off. I prefer to print all the forms off and then fill – hand fill them in. After you’d completed the handover and done the forms, what – what happened from there?---What I done after that was the forms themself. I – there’s a little box outside the nurse manager’s – emergency manager’s office which all the forms actually go into. I dropped the forms into that box, went back to the change rooms and got my stuff and went home.” [34] He then explained how he ruminated and had a sleepless night:12 “Can you tell us about what happened once you went home?---I was very, very upset. I mean, I was basically coming down from the adrenaline after the – the incident. I was quite shaken. I hadn’t actually had anything to eat for hours before that because we were short of staff. I went home and – because I only lived – I rented a place about two blocks from the hospital. I walked home and I just went over the incident over and over and over thinking – because I’d been told that I’d done everything so wrong, I went 11 T1-36/35 – T1-37/5. 12 T1-37/7 – 15. -- 11 of 56 -- 12 over throughout the night and – couldn’t sleep. Just went over in my head the incident and what I’d done wrong and what – the other implications of it. I was just very, very upset.” [35] Ms Hood was clinical nurse co-ordinator that night, so she was the team leader for the night shift. She was first alerted to a “lot of commotion and noise and stuff going on” and saw the plaintiff as he escorted the patient out the front doors from the emergency department waiting room. She recalled the exchange with the plaintiff on his return as follows: “I see. Did you see Mr Armstrong-Waters after the security guard had left the area?---Yes, I did. I spoke to Lance to see if he was all right to go back to work or if he needed to have a break. And what did he say?---That he was all right to return to work. Okay. Was the patient gone by that stage?---I cannot recall, sorry. Did you tell Mr Armstrong-Waters anything about what he had to do next?---I explained to him that he would need to complete a PRIME, which is a – like, a workplace incident form, about the event that had just happened. And was that the only document?---That was the only document that he needed to do, yes. Okay. And what did he say when you told him to do that document?---I can’t – sorry, I can’t recall. I see. Did you have any further conversation that you can recall with him?---Not that I can recall through the night. I would have gone back and checked up on him, but that – I cannot recall that – what the conversation was about. Okay. And did you accuse him of anything?---No.” [36] In cross-examination, Ms Hood said: “I did recall him saying that he was trying to punch – that he was punched, yes”, and that she reported the incident to Ms Kenneally. She explained that “a PRIME document was a document that is completed online with Queensland Health for any incident that happens within the workplace. It should have a specific number for each document that is filled out. It’s just something that every staff member is meant to do when they have an incident or a injury or anything at work”.13 [37] Ms Kenneally was the most senior nurse and in charge of the emergency department that night. Her responsibilities extended to the plaintiff, other employees and the patient. After being informed by Ms Hood about the incident and that the plaintiff refused to move to a quieter area to discuss issues, Ms Kenneally located the plaintiff who by then was back working in the fast track area. She recalled his demeanour and their conversation as follows:14 13 T2-63/7-38. 14 T2-65/14 - T2-66/44. -- 12 of 56 -- 13 “How was his appearance when you first saw him?---He was quite physically angry. He looked upset. I asked him what happened. I’ll take you through - - -?---Oh, sorry. - - - any conversation you had with him?---Yep. So you did have a conversation with him?---Yes, I did. Okay. And what did – who started that conversation? You or him?---I started the conversation. And how did you do that?---I asked him what happened. And what did he say in response to that?---He said that he had gone out to the waiting room to get his next patient, the patient had a blanket over him, when he went to get the patient the patient swung out – tried to punch him. Okay. What did you say in response to that? Can you recall?---I – first of all, I – I asked him to move to a quieter area, but he was reluctant to do that. He - - - Did he say why he was reluctant to move?---No, he just – he didn’t engage very much with me at all with – the conversation was brief. He didn’t engage very much with me during the conversation. He didn’t really – he appeared not to want to talk to me about the matter. He was angry – from my perspective, he was angry and had said the patient tried to – tried to hit him. I asked – I had been informed that he had physically removed the patient from the department. I asked him why he hadn’t just stepped back and called out for security. This is - - - And what did he say in response to that?---He said he was in line with his ABM training, which is aggressive behaviour management training, and asked if I had done that training, which I hadn’t, and - - - What did you say to him when he asked you that?---I said I hadn’t done the training myself. I see?---Yeah. And you had asked him, before that, you said, why he didn’t simply remove himself?---Just – just remove himself, step back, call for security. That’s their – their job to de-escalate. As I said, I didn’t witness it, so it was just my opinion at the time he should have done that. After you’d answered him that he hadn’t done the ABM training, what happened next?---Because he said the patient had tried to hit him, I suggested he get triaged. It was pretty late in the evening and, as I said, he – he did look upset. He was visibly angry. I – it was – I’d never seen him like that, so my suggestion was he go and get triaged and get seen medically. And what did he say to that suggestion?---He refused. -- 13 of 56 -- 14 Okay. Did he say anything to you about what he intended to do?---He – he – he basically – as he was walking away from me he terminated – he terminated the conversation as he was walking away from me. He muttered he was going to go to WorkCover, he was tired of the abuse in the emergency department. They were his words?---Yeah. I see?---From memory. Do you know if he completed the necessary paperwork that you asked him to complete?---It was the shift coordinator who’d had asked him to complete the paperwork. He asked me why he had to do it, and I said this was procedure to complete an incident report, which is the detail of the – what had occurred, and also a PRIME. A PRIME is the risk assessment part - - - I see?--- - - - of the paperwork. So - - - And when he – getting back to the suggestion of triage, when he declined to go there, did you make any attempt to persuade him?---I can’t – I can’t recall, sorry. How was his demeanour at that time?---As I said, he was – I just felt he was really angry and I – I felt like he was getting more angry with me trying to talk to him. Once he walked away from me and decided that conversation was over, I left – I left it at that, to be honest, and I went to check on the triage staff because we had staff that were also – needed to be supported that were at triage and had witnessed the event.” [38] In cross-examination, Ms Kenneally did not accept that she was hostile towards the plaintiff when she inquired about how the plaintiff had dealt with the patient. She rejected the proposition: “So when you went to see him, you started the conversation, didn’t you, by saying that – something to the effect, “How dare you take this patient out of this department. You have no right to do that”, by answering “No, I did not.” She also rejected that the plaintiff described that he was “attacked”, but she did recall that “He said a patient had swung at him and tried to punch him”. She explained that in response: “I did say to him he should have removed himself from any danger. I’d say that to anyone, step back and called out for security. The staff in triage are – they’re quite visible, they’re quite close. They definitely could make a call very, very quickly.” I accept Ms Kenneally’s recollection of her interaction with the plaintiff, including his escalating anger and agitation, that he was unusually shaking and had signs of shock, he rebuffed her suggested support and was disengaged. I also accept Ms Kenneally’s evidence, although not noted at the time, that: “I suggested he go and get triaged so he got – so he could have a medical review.” Similarly, I accept her evidence that as the plaintiff walked away from her he muttered that he was going to go to WorkCover, he was tired of abuse in the emergency department. [39] I prefer the evidence of Ms Hood and Ms Kenneally where it conflicts with the plaintiff’s evidence, however, I find that the manner, tone and choice of words used by Ms Kenneally were inappropriate and were likely to be perceived by the vulnerable plaintiff as a reprimand and accusatory, and were a source of overnight rumination. -- 14 of 56 -- 15 What happened between the plaintiff and Mr Brose, and on the next day? [40] Within 15 hours of the assault the plaintiff returned to the hospital and presented himself for triage and spoke with Mr Brose in his capacity as the acting nurse unit manager. [41] At triage he was seen by the nurse practitioner. He described that consultation as more empathetic as follows:15 “And what happened during your consultation with the nurse practitioner?---I expressed to the nurse practitioner that I was really, really upset about it. I felt disgusted, the way I’d been treated, and she was actually the only one that showed me any degree of sympathy or empathy post-event. How did she do that?---She actually said, you know, “Where are your injuries?” but “Do you need help? Do you need to speak to someone?” etcetera. And she said to me, “Look, you need to go and see the nurse manager if you’ve got, you know, concerns about the way you were treated and to do it officially”, basically. And how did that consultation conclude?---Well, after I’d been treated and everything else, I went around to the nurse manager - - - Just – just – thank you. Just before we talk about what you did with the nurse manager, what did you tell the nurse practitioner about – you’ve told us that you were upset. Did you talk about any other things that you wished to convey to her? You said that she looked for your injuries?---Well, she – because I had a sore shoulder, sore knee, painful back, etcetera. So I just needed to be examined for that. And yeah, I was just very, very shaken up.” [42] In accordance with the triage nurse’s recommendation the plaintiff went to speak to Mr Brose who was the acting nurse manager. He shortly described that encounter as follows:16 “Did you find him and speak to him?---I did find him. He was in his office. I had to wait a while in order to speak to him. Once I went into the office, I expressed – I basically outlined what had happened, the incident itself. I said to Mr Bross how really upset and disgusted I was, the way I’d actually been treated by Victoria Kenneally and Ms Hood. I said to him that, ‘Look, you know, I’d expected some degree of at least compassion from a thorough nurse, but instead I got accusations, bullied, and I found the whole incident very intimidating’. And what – did Mr Bross say anything to you?---He was pretty well noncommittal. He just said, ‘I recommend you take two weeks off and go and see your GP’. And as far as I understand, he asked me to fill out WorkCover forms then for the injury. So I would’ve filled those out and given him all the paperwork back, and then I went home.” 15 T1-37/28-46. 16 T1-38/4-16. -- 15 of 56 -- 16 [43] Ms Kenneally had already informed Mr Brose of an incident that happened the previous night involving the plaintiff. He wanted to talk with the plaintiff “purely around his wellbeing and safety because that wasn’t normal” for the plaintiff. [44] Mr Brose gave a measured account of his interaction with the plaintiff. He seemed well disposed to the plaintiff, personally and as an employee. He described his meeting with the plaintiff on the morning after the incident as follows:17 “When he first presented to you in your office, how did he appear to you?---He was quite affected by the incident the previous night, and – but not just the incident. He was quite upset with his dealings with Vicki Kenneally, the clinical nurse consultant on the previous evening, and felt that he wasn’t supported. Did he say that to you?---Yes. Okay. And what did he tell you about the incident itself?---From memory – obviously, it’s a while ago. He said he had gone out to the waiting room – he was working the fast track area of the department which is a high flow area. So, obviously, the patients who need simple treatments and then can be discharged quickly. And he was working that area, went out to the road and went to find a particular patient that was waiting to be seen. Our patient didn’t respond, went out to the person he thought was the patient, had some interaction and said that the patient had jumped up and taken a swing at him. Yes?---And then he felt it was his duty then to – for the safety of the patients, because the waiting rooms are quite busy, obviously, was to remove that patient from that waiting room. And did he provide you with any basis for his belief that that process was justified?---He said that – that the patient was a violent patient – a known violent patient and that he felt it was for – duty of care for the other patients was to remove the - - - And did he say that he was following any part of his instruction or training?---Yeah. So Queensland Health at the time – it has changed now – we ran an ABM course which was aggressive – aggressive behaviour management, I think, was the correct acronym for it. And he – because I did ask him around the process of how he removed the patient from the waiting room because I wasn’t – I’ve done the ABM training myself, and it wasn’t to – generally it’s around de-escalation and removing yourself from a situation to ensure personal safety. It’s not to generally go in and physically restrain a patient and remove them from the waiting room, but I just - - - Did you make that point to him?---Yes, I did. And what did he say in response to that?---He disagreed with me. I see. Now, after the discussion about the incident itself - - -?---Mmm. 17 T3-5/1 - T3-7/42. -- 16 of 56 -- 17 - - - did he give you any indication of what, if anything, he intended to do next in relation to his work status?---So – yes, he did. He indicated to me that he was going to go on WorkCover. So I did point him in the right direction and give him the contacts of the names who were on our rehabilitation team who would then assist him with going on WorkCover. And do you recall the names you gave him?---Deb Spalding and Kim Vine were the two names. I see?---And, additionally, I did speak to Kim Vine also about the incident from the OH&S team just purely because she was on a project, at the time, looking at the appropriateness of the ABM and the sustainability of the ABM training as well. I see. So he mentioned to you WorkCover?---Yes, he did. And Deb Spalding – Deborah Spalding was the correct person for him to go to, to activate that, was she?---Yes. Okay?---In my opinion, yeah, yes, yep. Yes. Did he say anything about his intentions with respect to any time off?---No. No. Okay. There was no indication from him about any intention to take time off or - - -?---No, normally, in those circumstances, I would explore having some time off. Generally – generally, a couple of weeks off, and then we can sit down again and discuss and see whether we’re feeling any better or do we need to look at – obviously, the emergency department is a high stress area and, at times, we will maybe offer somebody to go to a different – work in a different area of the – which isn’t as fast paced and you’re not exposed to, sometimes, the indoctrination of violence which, in emergency, they do, but Lance was very definitive in that he wanted to go onto WorkCover. I see?---And I didn’t feel it was the right time because he was – he was – in my opinion, he was quite angry that – for me to try and explore those other options with him, at that particular moment. I see. Now, did you discuss any options with him that were available in terms of dealing with the consequences of the incident?---Yeah, I was concerned about Lance when he came to my office. So I also spoke to him about the employment assistance scheme, which is a Queensland Health scheme which all employees had access to which is confidential, and I wouldn’t even know if he had accessed that. Just working – access psychologists and they can support them with the psychological side of being exposed to occupational violence. And did you raise that with him?---Yes, I did. Did you explain the nature of that program?---Yes, I did. To him?---Mmm. -- 17 of 56 -- 18 Is that program provided by Queensland Health employees at the hospital or somewhere else?---My understanding, it’s outsourced. So it’s an independent organisation that we outsource to, just so it’s not affiliated in that – it’s not Queensland Health employees that we’re having to deal with. And I think you said it’s confidential; is that right?---Totally – it’s confidential. I don’t get a report of who my staff have accessed the EMS. Did you mention those features of the program, that it was done externally and that it was confidential? Did you mention that to Mr Armstrong- Waters?---I would have said it was confidential. I don’t recall saying it was an external - - - Right?--- - - - company. And did you have any discussion with him about how that program is conducted in terms of being in person, by email - - -?---Yeah. - - - or by tele – what did – what was that discussion?---Sorry, yeah. So there are multiple options. You can do it on the phone. Particularly, the phone option is good for immediate access to the service or – generally, most people will want to do it face-to-face. My recommendation as a line manager is you do get better value out of sitting down with somebody and talking through the situation with them, but it’s up to the individual employee how they actually access those services and whether they just feel comfortable accessing it over the phone. Yes. What was Mr Armstrong-Waters’ response to your information about the EAS, about the Employment Assistance Service; can you recall?---I can’t recall. I’m sorry. He was – he was – it – it was difficult communicating with Lance, at the time, because he was quite angry about the previous night still. So I – I don’t know how much he actually took in of what I was saying, and that wasn’t normal behaviour for Lance, and that’s why I was concerned when I spoke to him about the EAS program.” [45] In cross examination Mr Brose contrasted the plaintiff’s presentation at the meeting with his normal demeanour saying: “Lance was easy to converse with. I could always make a really good conversation with – you could always have a joke with Lance. As his line manager – I’ve been his line manager for a number of years. If I needed something done, I could always go to Lance and he would never tell me no. He would – he was a – a really good employee. On the particular day, I could see he had been incredibly affected by the circumstances from the previous night, and I would interpret that there was a lot of anger there which wasn’t like Lance. He wasn’t that – that type of employee.” Mr Brose accepted that he expressed to the plaintiff concerns that his conduct could be an assault of a patient using excessive force, but he was not challenged about his recollection of the plaintiff’s story of being vigilant of the patient’s violet propensity and that he’d ‘had some interaction and said that the patient had jumped up and taken a swing at him’. [46] The plaintiff completed a WorkCover claim with the assistance of Ms Spalding. Ms Spalding also noted the plaintiff’s fatigue with patient assaults generally and detailed the nature of the previous assaults. The Workplace Incident Report describes -- 18 of 56 -- 19 an assault by Rodney Pascoe (identified as the male patient).18 This was completed by the plaintiff and counter-signed by two more senior staff members on 20 January 2014. The defendant’s case summary also records that the patient assaulted the plaintiff. [47] About 39 hours after the incident the plaintiff went to Dr Ireland for a certificate for his claim. During the consultation the plaintiff pointed to the emergency department incident as the reason for his attendance, but his description of his emotional state focused on over-time and historical reactions related to multiple previous assaults. Seemingly in this historical context, the plaintiff told the doctor of often feeling scared at work, being concerned about his daughter going out, his home security modifications and paranoia when out in public. This is consistent with various reported incidents contained in the case summary involving the plaintiff: 1. On 3 August 2009 an emergency department patient was abusive and struck out at the plaintiff, pushed over a computer monitor and punched him in the shoulder and chest, resulting in soft tissue injuries to plaintiff’s shoulder, upper arm/elbow/forearm, wrist, and thumb.19 2. On 3 November 2010 a patient was verbally abusive and threatened to kill the plaintiff as he was leaving the emergency department for a smoke.20 No injury is recorded. 3. On 19 October 2013 a patient threated the plaintiff with a dangerous weapon (concealed in a plastic box) and physical assault in the emergency department.21 No injury is recorded. [48] In due course a detailed investigation process ensued in accordance with guidelines and Ms Vine, of the defendant’s occupational health and safety team under Mr McGovern, undertook an Incident Analysis Report. Some contact was made with the plaintiff as file noted. The report was finalised on 26 February 2014. What is the plaintiff’s particular injury? [49] The plaintiff suffered long term orthopaedic and psychiatric injuries. [50] Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee resulting in a 1 per cent whole person impairment, and stiffness to his shoulders, as well as bearing pre-existing degenerative changes in his lumbar spine as well as osteoarthritis in his left knee. Clearly any physical injury is attributable to the physical altercation with the patient.22 [51] Dr Cantor, psychiatrist, diagnosed the plaintiff’s injuries as being chronic post- traumatic stress disorder; either chronic adjustment disorder with depressed mood or major depressive disorder; chronic pain disorder associated with psychological factors and general medical condition; and alcohol abuse in near full remission.23 Professor Whiteford diagnosed the plaintiff with post-traumatic stress disorder and mild generalised anxiety.24 18 Exhibit 1 pages 365 – 366. 19 Exhibit 1 – Doc. 2. 20 Exhibit 1 – Doc. 3. 21 Exhibit 1 – Doc. 4. 22 Exhibit 14. 23 Exhibits 11 & 12. 24 Exhibit 16. -- 19 of 56 -- 20 [52] In a psychiatric injury case like this, distinct issues arise about the trauma mechanisms involving the initial altercation with the patient, the plaintiff’s treatment in the aftermath, and other contributing factors. Whilst the psychiatric expert witnesses, Dr Chris Cantor and Professor Harvey Whiteford, agreed that the incident on 19 January 2014 was the major cause of the plaintiff post-traumatic stress disorder, they differ in their view of the trauma mechanisms. [53] Dr Chris Cantor provided reports of 22 June 2015 and 27 June 2018 and later affirmed a file note made on 17 January 2019.25 His opinion is largely predicated upon the plaintiff’s pre-trial perception of the incident and his report of earlier traumatic incidents during his time in the Navy, as a paramedic in the night, and as a nurse working in the Cairns Base Hospital from June 2007; as well as the plaintiff’s medical records. [54] Against this background, Dr Cantor diagnosed the plaintiff with post-traumatic stress disorder caused by multiple stressors to which he had been exposed. He attributed the predominant cause of the plaintiff’s injury was the altercation with the patient on 19 January 2014. He considered it unlikely that past exposures to violence and social depravity had been major factors in the plaintiff’s traumatic reaction; although they may have promoted resiliency (eg. in familiar and expected threats), they may have also sensitised the plaintiff to later post-traumatic stress disorder under different circumstances as suggested by Professor Whiteford, and promoted vulnerability (eg. in unfamiliar and or unexpected threats). He adhered to his earlier opinion that a number of other workplace incidents in the emergency department were likely to have sensitised the plaintiff to a more adverse reaction to the incident, especially having alerted the defendant to the risks posed to staff. [55] Notably, the plaintiff’s account relayed to the doctor for his 2015 report conveyed a more serious, prolonged and violent event. The account suffered much of the same flaws as exposed during the plaintiff’s evidence. He did not shake the patient’s foot. The blanket was not pulled off the patient’s face but was pulled off his entire body at once. The patient’s reaction was not sudden after that, instead it was a delayed as the plaintiff seemed to rouse from an intoxicated sleep in a slow and unsteady manner; first sitting then pausing briefly before standing and punching. The patient did not attack by throwing multiple punches and kicking. He is seen to throw one punch that likely hit the plaintiff. The patient was not “the same size as Mr Armstrong-Waters who is strongly built.” The whole incident did not last “between five and 10 minutes,” and the plaintiff’s belief that he was “fighting for his life” is incongruent with his conduct and trying to calm the patient. It seems to me that the plaintiff quickly and effectively gained a controlling hold of the patient’s right arm after very a brief wrestle on the floor. The patient showed no resistance as he was marched by the plaintiff through and out of the emergency department waiting room. [56] In my view the flawed account of the incident and aftermath provided by the plaintiff in 2015 and relied upon by Dr Cantor has undermined the weight of his opinion evidence. Dr Cantor’s subsequent report of 27 June 2018 was in the nature of a document review without seeing the plaintiff, thereby perpetuating the problem reducing the weight of the evidence. Further, it seems to me that the doctor misapprehended the nature of the incident relative to past multiple assaults and 25 Exhibit 11, 12 and 13. -- 20 of 56 -- 21 symptoms recorded in the Apple Tree Creek Medical Centre notes,26 including flashbacks to an incident that occurred in 1981 reported by the plaintiff to Dr Ireland on 21 January 2014. [57] As to the aftermath, Dr Cantor noted the plaintiff’s perception of an unsupportive reaction by his duty manager to “likely to have further fuelled a more severe traumatic response.” In this regard the doctor noted in his 2015 report that when the plaintiff returned to his computer in a shaken state of mind immediately after the incident on 19 January 2014, his duty manager (presumably a reference to Ms Kenneally) criticised him for removing the patient from the emergency department and telling him that he used unreasonable force and, after the plaintiff responded that he believed his life had been at risk, the duty manager remained unsupportive and demanded paperwork be completed before he left. In his 2018 report he noted that (although without the benefit of interviewing the plaintiff again) on 21 January 2014 the plaintiff was accused by the management (presumably a reference to Mr Brose) of having inappropriately restrained and removed the patient. [58] Closer to trial, in the file note taken on 17 January 2019, Dr Cantor noted that the most important thing to do after a traumatic event is to lower the arousal levels of the subject and he explained that this is achieved by not being confrontational and accepting their version of events. He opined that if a subject is met with confrontation after a traumatic event, arousal levels will further increase. In contrast, if support in the workplace is offered to the subject, the arousal is lowered and generally the symptoms are resolved sooner. Dr Cantor testified that whilst the previous professional approach is to get the subject to express his feelings and focus on the aftermath, further research has found it “more helpful to offer the subject something like a cup of tea and sit down and offer a lot of sympathy to his experience”. [59] During his evidence, Dr Cantor conceded that the assistance offered by Mr Brose and Ms Spalding was sensible in relation to seeking medical assistance or the assistance of the employee assistance scheme.27 However, I think Dr Cantor misapprehended the exchange between the plaintiff and Ms Kenneally, in the context of their heated conversation wherein she was trying to understand what occurred out of her proper concern for both the plaintiff and the patient rights, as well as the nature of the conversation with Mr Brose. [60] I prefer the evidence of Professor Whiteford over Dr Cantor. [61] Professor Whiteford provided two reports dated 15 June 2015 and 6 February 2018 each following an interview and examination of the plaintiff and collateral material. [62] Professor Whiteford concluded that the incident on 19 January 2014 was not the sole cause of the plaintiff’s post-traumatic stress disorder. He attributed the onset of overt post-traumatic stress disorder symptoms from an accumulation of traumatic events over time invoking the concept of allostatic load. He relied upon the plaintiff’s reported traumas he encountered during his time as a Navy medic and Navy medical officer, as a paramedic in the United Kingdom and events at the Cairns Hospital before January 2014. He considered these as contributing factors with the events of January 2014 triggering the symptoms reaching the threshold for a diagnosis, 26 Exhibit 9. 27 T2-18/23 - T2-19/41. -- 21 of 56 -- 22 aggravated by his employer’s accusation that he had behaved inappropriately towards that patient when restraining him. [63] Professor Whiteford noted the plaintiff’s exposure to “very many traumatic incidents” while serving as a Navy medic, Navy nursing officer and ambulance officer. He recorded the plaintiff being exposed to “many incidents where he had to deal with dying and deceased individuals, some of whom had been the victims of major trauma. He also reported there were many occasions where he was threatened and sometimes assaulted by individuals” in the course of his former vocational duties. The professor also points to the plaintiff’s flashbacks to an old incident he was involved in in 1981 (as reported to Dr Ireland on 21 February 2014) - “flashback to motorcycle incident when younger in the Navy … with all the Harleys around Cairns”. [64] As to previous stressors in the Cairns Hospital setting, the plaintiff reported multiple traumatic incidents during the period of his work in the emergency department from June 2007 until January 2014. He associated an escalation in violence with illicit substance abuse in the community and alcohol abuse especially amongst indigenous males. The professor relied upon several incidents reported by the plaintiff as stressful, including: after mid-2013 and individual threatened to cut heads off people with a machete in the emergency department; at the end of 2013 and male patient lunged at him and a security officer with a flick knife; in November or December 2013 another male brought an esky containing sharp knives and other dangerous objects into the emergency department; otherwise there was an incident of actual or threatened violence in almost every shift and he personally received threats involving knives, chainsaws, needles and being punched. These events were also overlaid by the plaintiff’s role in seeking changes to avoid future risks. [65] The plaintiff’s account of the incident of 19 January 2014 is somewhat understated in reports by Professor Whiteford but generally accords with the evidence adduced at trial. Like Dr Cantor (initially), the professor attributes the plaintiff’s recollection of being accused by management of acting inappropriately in the way that he restrained and removed the patient as occurring on 21 January 2014 after one day of leave, without any reference to his encounters with Ms Hood, Ms Kenneally or Mr Brose. Nevertheless, Professor Whiteford accepted that the plaintiff’s symptoms were aggravated by the plaintiff being accused of inappropriately dealing with the patient when restraining and ejecting him. He did not accept, that the difference between all the former trauma and the subject incident and its aftermath, that absent the post incident aggravation – the plaintiff’s enduring post-traumatic stress disorder would have been avoided. LIABILITY [66] The legal framework for the case is found in the law of negligence, as reframed by Chapter 5, Part 8 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”), and the relevant considerations for breach of duty and causation are governed by those legislative provisions.28 Did the defendant breach its duty of care to take precautions against a foreseeable and not insignificant risk of injury to the plaintiff? 28 Cf. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [11], and Inghams Enterprises Pty Ltd v Tat [2018] QCA 182 at [28]. -- 22 of 56 -- 23 [67] Section 305B(1) provides that a person does not breach a duty to take precautions against a risk of injury to a worker unless: 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and 2. the risk was not insignificant; and 3. in the circumstances, a reasonable person in the position of the person would have taken the precautions. [68] Sections 305B(2) and 305C provide for related considerations for deciding liability for a breach of duty. The statutory considerations of breach of duty must be considered and assessed prospectively and realistically, and not through the prism of hindsight by reference to what actually occurred.29 [69] As Gleeson CJ in Rosenberg v Percival,30 explained: “There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated…” [70] In Vairy v Wyong Shire Council,31 Hayne J explained the prospective nature of the inquiry into breach of duty in contrast to matters of causation as follows: “[124] Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry 29 Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124]-[128]. Compare Rosenberg v Percival (2001) 205 CLR 434 at 441 – 442, Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317 at [101]. 30 Rosenberg v Percival (2001) 205 CLR 434 at 441 – 442. 31 Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124]-[128]. -- 23 of 56 -- 24 into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’. … [126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. … [128] If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was — diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.” [71] Further, the court must act in a realistic paradigm as McHugh J observed in Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd:32 “I think that the time has come when this court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall — perhaps it already has fallen — into public disrepute if it produces results that ordinary members of the public regard as unreasonable.” [72] In Coca-Cola Amatil (NSW) Pty Ltd v Pareezer,33 Mason P observed: “In a case of breach by omission the plaintiff must clearly identify what should have been done and proved that it was unreasonable in the circumstances not to do it (cf Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319). A breach inquiry is not satisfied merely by positing, with the benefit of hindsight, that something more might have been done.” 32 Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317 at [101]. 33 Coca-Cola Amatil (NSW) Pty Ltd v Pareeze [2006] NSWCA 45 at [3]. -- 24 of 56 -- 25 Was there a foreseeable risk of injury to the plaintiff as a result of aggressive behaviour of a patient and the aftermath? [73] The defendant accepts that it owed the plaintiff a duty of care. That included an exercise of reasonable care to minimise the known and common risk of assault by intoxicated patients. It also accepts that the duty extends to the provision of any reasonable support post-incident, but not in relation to the conduct of the investigation per se.34 [74] The plaintiff relies upon deemed admissions in respect of paragraphs 11(a) and (b) of the statement of claim by operation of the rules, that: 1. The defendant knew the plaintiff was at risk of psychological and physical injury at work as a result of verbal and/or physical aggression by persons visiting the emergency department (the risk); 2. The defendant knew that the risk of psychological injury as a result of verbal and/or physical aggression towards its employees was likely to increase the severity of injury if it did not provide assistance and support to its employees who are the victims of verbal and/or physical aggression in the course of their employment such as that provided by the guidelines. [75] I accept that these admissions are made out by operation r 155 of the Uniform Civil Procedure Rules 1999 (Qld). In any event, the defendant properly accepts that the foreseeability of the risk of assault by a patient on a health worker in a public hospital emergency department, and consequential injury including increased severity of psychological injury in the aftermath, was foreseeable. This is also borne out by the documentary evidence. The defendant knew of the risk of psychological and physical injury at work as a result of verbal and/or physical aggression by persons visiting the emergency department. [76] The Procedure for Occupational Violence Risk Assessment35 sets up a formal process for risk assessment to be undertaken in the manner reflected in the OHS risk assessment completed in 2011.36 [77] The Implementation Standard for Occupational Violence Prevention and Management37 recognised that health industry occupational violence and aggressive behaviour risk factors among clients or visitors, included: intoxication and a known history of violence, intimidation or threatening behaviour. The management of risks involves patient violence risk assessment and training and awareness. [78] The Implementation Standards,38 imposed requires identification of occupational violence and risk factors at the facility level, including: “5.1.1 The Line Manager, in consultation with stakeholders, shall assess all occupational violence hazards to determine contributing risk factors 34 Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, and Hayes & Ors v State of Queensland [2016] QCA 191. 35 Exhibit 1, Doc. 6. 36 Exhibit 1, Doc. 10. 37 Exhibit 1, Doc. 7, paras 5.1.2, 5.3.7 & 5.3.8. 38 Exhibit 1, Doc.7. -- 25 of 56 -- 26 bracket source of hazards bracket and to identify and prioritise risk management strategies. 5.1.2 The following are the recognised health industry occupational violence and aggression behaviour direct risk factors among clients or visitors: • Altered states (e.g. intoxication through drugs or alcohol); • Frustration and/or dissatisfaction with service delivery or service policies (e.g. waiting, medical care, smoking policy) • Pain and fear (e.g. trauma, loss of loved one) • Medical condition or metabolic disorder symptoms not adequately identified or controlled (e.g. acquired brain injury, dementia, delirium, severe mental illness) • Known history of violence, intimidation or threatening behaviour. 5.1.2 Potential violence hazards shall be identified at the working level to identify work areas, occupational groups, services and tasks at risk of occupational violence; and reviewed annually or in light of a serious incident. 5.1.3 Work unit risk analysis shall include a review of occupational violence incident data…” [79] I do not have any risk analysis undertaken by line managers or at the work unit of the emergency department in accordance with the Implementation Standard. However, the OHS risk assessment completed in 201239 identifies the relevant risks including clients with alcohol abuse frequently being within the department and “low numbers of staff trained in aggressive behaviour management (35% nursing)”. In 2010 there were 15 incidents of occupational violence. This can be contrasted to records of 52 incidents in the year of this incident. However, the authors considered it unlikely there would be any occupational violence in the emergency department. Even so, the assessment noted a general increase of aggressive incidents involving physical violence and the ultimate assessment of a risk rating of ‘high’ was made, requiring senior management attention responsibility. [80] The Aggressive Behaviour Management for Healthcare Workers Participant Manual40 developed since 2003 recognised that exposure to aggression in the workplace can cause pain, suffering and disability, and can compromise health through prolonged anxiety or stress. The defendant asserted that “Under no circumstances should exposure to aggression in the workplace be accepted as a normal part of the job. All reasonable measures must be taken to ensure the safety of employees and those to whom they have a duty of care. Maintaining psychological well-being is as important as maintaining physical safety” (page 8). Workplace aggression is defined as any incident in which employees are threatened or assaulted 39 Exhibit 1, Doc. 10. 40 Exhibit 1, Doc. 15, and extracts Doc. 13. -- 26 of 56 -- 27 in circumstances arising out of their work. It includes verbal abuse, intimidating and threatening behaviour, and actual physical assault causing injury. Examples include threats from intoxicated patients (page 9). [81] It is evident that the defendant well knew of a foreseeable risk that the plaintiff was at risk of psychological and physical injury at work as a result of verbal and/or physical aggression by persons visiting the hospital generally and that included the emergency department. [82] However, I do not accept that foreseeability of the risk extends to knowledge of the practice of giving blankets to patients, or patients using blankets and lying down and sleeping while waiting in the emergency department. The evidence about any problems using blankets gave rise to a risk of staff being unable to monitor and observe the well-being of patients, and the potential for blankets to be used to hide objects. Neither of those aspects are relevant to the present case. The defendant knew the risk of increase in the severity of injury if it did not provide assistance and support to its employee victims of verbal and/or physical aggression in the course of their employment. [83] The defendant’s guidelines for post-incident management strategies is found in its Occupational Health and Safety Management System – Better Practice Guidelines – OHSMS 2 – 44 –1 # 38 dated February 2011.41 The guidelines provide for incident management and later investigation. In s 4.8 of the guidelines, the defendant recognised “The two key factors that interact to reduce the effects of a workplace injury for the injured staff member and the employer is early intervention and early return to work.” [84] It is therefore also evident that the defendant knew of a foreseeable risk that a psychological injury sustained by an abused employee was likely to increase in severity if it did not provide timely assistance and support to the employee. Was the risk of injury to the plaintiff not insignificant? [85] The plaintiff relies upon, as a deemed admission, the assertion in paragraphs 11(c) of the statement of claim by operation of the rules that the risk was not insignificant. [86] In any event, the defendant properly concedes that the relevant risk of injury from an assault by a patient on a health worker in a public hospital emergency department meets the threshold test of being “not insignificant”. Indeed, it acknowledges that such assaults have become of such common occurrence that they may be described as an ‘occupational hazard’. In the circumstances, would a reasonable person in the position of the defendant have taken the precautions? [87] The plaintiff further asserts that the defendant is bound by a deemed admission to paragraphs 11(c) of the statement of claim, that a reasonable person in the position of the defendant having identified the risk, as the defendant had, would have taken precautions against the risk of injury as the defendant had determined it should prior to the assault. 41 Exhibit 23. -- 27 of 56 -- 28 [88] It seems to me that the plaintiff’s pleading conflates issues of breach of duty and causation and does not readily lend itself to be caught by operation of rule 166(4) of the UCPR as a deemed admission. [89] It seems to me that the defendant does join issue with the conflated allegation and maintains that no breach of duty arises when its employee is the aggressor. In paragraph 11(a) the defendant asserts that: “… there was a theoretical risk of psychological and/or physical injuries to the Plaintiff if verbal and/or physical aggression was directed at him by persons visiting the emergency department but states at the material time there was no actual risk of psychological and/or physical injury to the Plaintiff as the subject incident involved the application of physical force by the Plaintiff to the patient and not any verbal and/or physical aggression by the patient towards the Plaintiff.” It otherwise maintains that the precautionary measures following from the guidelines for post incident management were appropriately developed, reviewed and applied in the circumstances.42 [90] The plaintiff argues that the defendant had identified an actual, not theoretical, risk of injury from aggressive behaviour, even if resulting from an employee’s actions in its emergency department. That duty extends to dealing with the risk that the employer must take into account the possibility of thoughtlessness or inadvertence or carelessness.43 Further, he argues that the defendant had knowledge that the actions of its employees could increase the possibility of that risk being realised because the patient or visitor may be provoked into aggressive action by the conduct of the relevant employee. [91] In deciding whether a reasonable person would have taken precautions against a risk of injury s 305B(2) requires the court to consider, among other relevant things: 1. the probability that the injury would occur if care were not taken; 2. the likely seriousness of the injury; 3. the burden of taking precautions to avoid the risk of injury. [92] Other principles relating to liability for a breach of duty are in s 305C: 1. the burden of taking precautions to avoid the risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and 2. the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and 3. the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. 42 Defence para 11. 43 Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353. -- 28 of 56 -- 29 [93] The plaintiff alleges in paragraph 11 of his statement of claim that the defendant failed to take precautions against the risk of injury by: 1. Failing to conduct ongoing reviews of incidents of aggression, and/or failing to identify the risks to employees in the emergency department; failing to take any or any adequate steps in response to issues arising on such reviews and/or the risk; and failing to devise, implement and maintain work methods for dealing with the risk in a way that eliminated or reduced the risk the risk; 2. Failing to provide regular and up-to-date training to its employees including the plaintiff on how to manage the risk; 3. Failing to provide a sufficient number of security staff in the emergency department to deter, prevent or reduce the seriousness of assaults on its employees. 4. Failing to devise, implement and maintain work systems to implement the guidelines by failing to identify qualified personnel coordinating a post incident response, conduct briefings and/or provide counselling; and failing to provide sufficient instruction, training and supervision to Ms Kenneally and Mr Brose to enable them to implement the post-incident response required by the guidelines. [94] I have concluded that the defendant did breach its duty of care to the plaintiff to take precautions by failing to provide staff with refresher training in aggressive behaviour management and by failing to identify and train personnel to undertake timely post incident management contrary to the guidelines for the following reasons. The defendant did not fail to conduct ongoing reviews adequately to findings, or devise, implement or maintain work methods to eliminate or reduce the risk. [95] The plaintiff relies upon these sorts of post-incident recommendations to support an inference that there was a system that could have been found by review and adopted as a reasonable and practicable precaution to take in respect of the risk – such as limiting interaction to verbal communication including requesting the patient to remove or handover the blanket.44 [96] These ideas came from the review following the subject incident involving the plaintiff. I think the allegation is flawed as it approaches the matter subjectively through the prism of hindsight. [97] At the relevant time, it was not recognised as being unusual or inappropriate to provide blankets to people for the usual and conventional purpose as a covering to keep comfortably warm while waiting in an emergency department. There is no evidence of any previous incident involving waking or dealing with a sleeping patient whether lying down, and/or under a blanket. At best the contraindications for the use of blankets are that they give rise to a risk of the patient’s death where a nurse is unable to see vital signs, and they conceal weapons. None of these are of concern here. There is no temporally contextual evidence that reveals an identifiable need or burden of changing the process or system of waking patients asleep under blankets while waiting in the emergency department, or afterwards dealing with such patients. 44 Contrast, Exhibit 22 - Incident Investigation Report recommendations, supported by Mr Brose. -- 29 of 56 -- 30 [98] Having regard to the circumstances of the times, a reasonable person in the defendant’s position was unlikely to have taken precautions in this way that would reduce the probability of occurrence and seriousness of the injury. The defendant failed to take adequate precautions by not providing timely refresher aggressive behaviour management training, but not merely about blanket use, lying or sleeping patients. [99] The plaintiff’s further particulars of the allegations focus on the existing practice of allowing patients or visitors to lie down and sleep on furniture, and supplying blankets to those people, while waiting in the emergency department. In effect it is asserted that the risk of injury to a nurse is increased because of the need to act cautiously when dealing with a covered and potentially violent patient, who may also react violently or aggressively when roused. The plaintiff says that the defendant failed to take precautions by way of providing refresher or any training on the safe methods to deal with or wake people who were under blankets and/or sleeping under blankets. [100] The Implementation Standard45 recognised that the management of risks involves training and awareness. Paragraph 5.3.8 states that “all staff shall be provided with adequate information, training and supervision to ensure work practices are designed and undertaken in the safest possible way and the risk of occupational violence is prevented or minimised.” The potential for violence is an ongoing process and would be assessed at each direction by the nursing staff. That assessment being to determine the safest and most appropriate responses for management of the individual patient. To do this effectively the Implementation Standards46 recognised that all staff shall be provided with adequate information, training and supervision to ensure work practices are designed and undertaken in the safest possible way and the risk of occupational violence is prevented or minimised. The training would be specific to the worker’s role and the tasks they perform. [101] The Aggressive Behaviour Management for Healthcare Workers Participant Manual47 developed since 2003 long recognised the need for training as one of the control measures to minimise the risk of injury and illness for employees. The learning outcomes include verbal and physical techniques in minimising injury or danger to staff, patients and others. [102] At that time of the plaintiff’s training and since, the manual48 used in staff training included: (a) One of the course objectives is "to maintain high-quality care environments in the course of aggressive behaviour events; … to encourage and empower individual employees to assist the workplace and work practices to prevent aggressive behaviour events; … to maintain respect for the health rights and needs of individual consumers.” (page 5) (b) Notes of recent literature reports of an increase in the incidence of occupational violence in emergency departments (page 11); 45 Exhibit 1, Doc. 7, paras 5.1.2, 5.3.7 & 5.3.8. 46 Exhibit 1, Doc.7, ss 5.3.7 & 5.3.8. 47 Exhibit 1, Doc. 15, and extracts Doc 13. 48 Exhibit 1, Doc. 13 & 15. -- 30 of 56 -- 31 (c) Predictors of aggressive behaviour including alcohol abuse fueled client aggression due to poor judgment, disorientation, and disinhibition (page 12). Behavioral cues and warning signs including magnified startle response to normal environmental cues, smell of alcohol and history of past violence towards others. (d) Some early predictors again include a history of past violence towards others, as well as verbal aggression (page 13). Precipitating or trigger events include “invasion of body space” (page 14); (e) The checklist of warning signs of impending violence includes when a client refuses to cooperate, threatens or verbally abuses workers; has a substance abuse problem, and a history of violence (page 15); one of the controls of workplace aggression suggested at page 28 is to “adapt and change work practice, e.g. introduce aggressive behaviour management training,…”; (f) Module 2 emphasises the need for staff to interact with patients in accordance with the Code of Conduct (2000) to minimise the frequency and extent of aggressive episodes. It affirmed the commitment under the public patients charter of “helping people to better health and well-being”, through giving quality health services that are safe, efficient, effective and respectful of rights of the individual, including “to be treated with respect, dignity and consideration regardless of age, gender, sexual preference, religion and culture.” (page 25) (g) The extracts of the Queensland Health Code of Conduct (2000) promotes respectful behaviour in the treatment of clients and others with proper regard for their rights and obligations. The requirements include: (i) Employees should respect the dignity, rights and views of others and avoid all forms of harassment mistreatment and other coercive and unethical behaviour. In particular, “staff should be aware that violence will not be tolerated towards patients/clients,… or members of the public. They must be courteous, diligent and helpful in dealing with the public… and impartial and objective in performing the duties.” Such behaviour is said to be liable to disciplinary action. (page 26) (ii) Staff must be aware of the obligations under workplace health and safety legislation to take all reasonable steps to ensure their own safety, health and welfare, as well as that of clients, patients and members of the public. Managers are obliged to ensure the health and safety of employees and visitors. (page 26) (iii) Managers are responsible for setting a good behavioural example including open communication, fair treatment of staff, ensuring staff comprehension of standards and providing equitable staff development opportunities. (page 27) (h) Module 3 deals with effectively responding to difficult and challenging behaviour in the context of the six phases of the cycle of aggression, -- 31 of 56 -- 32 namely: triggering incidents; escalation; crisis point; settling; post crisis depression; and returning to normal functioning. (page 35) (i) The short-term triggers include provocation, response to failure, poor communication, frustrating situations, violation of personal space and disturbance of expectations. For “provocation” it acknowledges that many assaultive persons claim that staff provoke them, particularly when they have had things taken from them, such as cigarettes, drinks and food. (Page 36). Significantly, it is recognised that aggression may be triggered by staff behaviours that are in themselves aggressive, including verbal aggression such as being “demanding, not requesting”; and non-verbal aggression such as “having tense or impatient posture”. (page 37) (j) In the escalation phase the primary aim of staff is to reduce the anger and anxiety by calming the other person, but if the behaviour continues to escalate options include to summon help and withdraw especially when alone. (page 38). Further crisis may involve implementation of restraint techniques, thereby recognising that staff also have a lawful right to defend himself using reasonable force.49 (k) The post event considerations include the possibility of post-traumatic stress disorder and common indicators of the condition, including difficulty sleeping, bad dreams, tenseness, irritability and intrusive thoughts and shaking. (pages 54-55) [103] Additionally, the Procedure for Occupational Violence Prevention50 recognised that four hours of annual refresher training is required to maintain competencies in areas assessed as having a high risk of physical violence. The OHS risk assessment completed in 201251 includes a risk assessment tool wherein a box is ticked for employees maintaining competency skills set by attending aggressive behaviour management refresher training. [104] The plaintiff undertook the four day training program on 11 to 14 February 2008,52 but did not receive any further development opportunities. [105] It is plain that the defendant did fail to take adequate steps to provide refresher training despite the increasing incidents and greater risks of aggression and injury to staff in the emergency department. Notwithstanding the identified aspiration for annual refresher training, the plaintiff had not received any refresher training since February 2008.53 [106] I think a reasonable person in the defendant’s position would have provided staff, including the defendant, with timely refresher training (even if not annually). Such a development opportunity would enable staff to familiarise themselves with the predictors, behavioural cues, warning signs and early predictors, precipitators and triggers for patient aggression; self-regulation and expectations of staff conduct; the 49 See also, Implementation Standards, p3. 50 Exhibit 1, Doc 8, para. 5.2.2 & attachment ‘A’. 51 Exhibit 1, Doc. 10. 52 Exhibit 1, Doc. 14 – Aggressive Behaviour Management Competency Standards. 53 Exhibit 1, Doc. 14 – Aggressive Behaviour Management Competency Standards. -- 32 of 56 -- 33 elevated risks if staff are aggressive and provocative; and appropriate communication and treatment of all patients. [107] It seems to me that the timely refresher training of matter in the manual would not have been too burdensome and would have reduced the probability of assault and consequence of serious injury. The defendant did provide adequate security staff in emergency [108] The plaintiff pleads that the defendant failed to have any or a sufficient number of security staff in the emergency department to determine, prevent or reduce the seriousness of assaults upon its employees. [109] The obligation to provide a safe system of work extends to security of the personal safety of an employee.54 This obligation can extend (as an exception to the usual rule) to a duty to guard against criminal acts of third parties.55 The defendant did provide security guards in close proximity to the emergency waiting area and they had a demonstrated capacity for rapid response. There is a dearth of evidence about indicative behaviour or demeanour that ought be observable on entry or while waiting in an emergency department to inform me about the sufficiency of numbers of security staff the plaintiff asserts would be able to prevent or reduce the seriousness of assaults upon its employees. [110] It seems to me that a passive security response to unremarkable behaviour of a person entering, waiting and sleeping in the emergency department would not increase the probability that any injury would occur absent a higher security presence, and it would be burdensome for any provider to provide excessive security personnel in such circumstances. A reasonable person in the position of the defendant did not fail to take precautions of having more security staff. [111] Further, consistent with my view about the provision of blankets, I do not accept that a reasonable person in the position of the defendant ought to take precautions of getting security staff to ensure visitors and patients were not allowed to sleep on the furniture or cover themselves with blankets. The defendant failed to comply with its guidelines relating to post-incident management by failing to identify and train personnel to undertake timely post-incident management contrary to the guidelines. [112] The plaintiff alleges that the defendant failed to implement and maintain systems to implement its guidelines with timely identification of qualified personnel coordinating a post incident response, conduct briefings and/or provide counselling. [113] This is disputed by the defendant which asserts that prepared, appropriate guidelines were applied, as appropriate, following the subject event.56 It argues that the guidelines were an investigative tool,57 and not applicable as an immediate response 54 Public Transport Corporation v Sartori [1997] 1 VR 167 at 173; Karatjas v Deakin University [2012] VSCA 53 at [25]-[31]. 55 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [29], [35], [42], [108]- [109], [138]-[141]. 56 Defence, Paras. 11(b) & (c). 57 Defence submissions, Para. 45. -- 33 of 56 -- 34 to the incident on a busy Sunday night in the emergency department of a public hospital.58 [114] The plaintiff particularly relies upon section 4 of the guidelines which provides for security incident management and investigation including:59 4.8 Injury Management Loss or disruption when a workplace incident occurs can be significant, not only in terms of human suffering but also from a financial and operational perspective. The two key factors that interact to reduce the effects of a workplace injury for the injured staff member and the employer are early intervention and early return to work. Person suffering physical or psychological injury should be referred to the District Occupational Health and Safety Unit, Rehabilitation in accordance with Capitals OHSMS 3#21 Queensland Health Injury Management Policy. 4.9 Post-Incident Management Post incident management strategies include: • Procedures for reporting the incident; • Investigation of the incident to identify when it occurred, who was involved, and what could be done to prevent re-occurrence; and • Procedures for providing support to any person/s involved in or affected by the incident. For example, Employee Assistance Programs and Victims of Crime. The severity and outcome of an incident will determine the type of level of post-incident management. Appropriate actions should include: • Providing medical treatment; • Providing relief staff to allow individuals exposed to the incident time to recover and regain composure; • Incident debriefing; • Critical incident debriefing; • Counselling (individual or group sessions); and • Rehabilitation and return to work. 4.10 Roles The health care facility should identify people who are suitably qualified to carry out the following roles and function: • Coordination of the post incident response; • Conducting debriefing; and • Providing counselling. 58 Defence submissions, Paras. 153 – 155. 59 Exhibit. 1, doc. 16. -- 34 of 56 -- 35 4.10.1 Supervisor’s Role Supervisors should be aware of the signs and symptoms of post-incident psychological behaviour or ill health through observation of staff actions and work patterns. Supervisors will support affected persons and ensure support mechanisms are available by advising the District Occupational Health and Safety unit of the incident and its effects as soon as practicable following the incident. 4.10.2 Post Incident Debriefing Districts shall develop procedures for post incident debriefing which should occur as soon as possible after the incident and include the involvement of clinical and security staff and others involved in the incident. Persons involved in or having knowledge of contributing factors to the incident should be encouraged to participate. Incidents vary in severity and varying emotions may exist and they should be appropriately dealt with to reduce any stress response and/or ongoing difficulties. The debriefing should be offered so people affected can discuss the event, their thoughts, emotions and feelings in a ‘no blame’ atmosphere. Peer debriefings provide those affected by the incident with validation of their feelings and support from within their own peer group. The debriefing also offers opportunities to reinforce with the group that an individual's response is normal and acceptable and that counselling is available if needed. 4.10.3 Counselling Counselling provides assistance and support to those people who are psychologically affected by an incident. Participation in counselling is voluntary. Refer to the employee assistance program on QHEPS http://qheps.health. qld.gov.au/eap/. The defendant failed to identify to undertake timely post- incident management contrary to the guidelines [115] The plaintiff’s allegation is that the defendant failed to comply with the guidelines because it had not set up a system whereby suitably qualified persons had been identified to coordinate the post-incident response, conduct briefings and/or provide counselling to the plaintiff. [116] The defendant contends that it is untenable that the guidelines applied to Ms Kenneally (and it seems Mr Brose) since the appointment of an appropriate person to investigate this serious issue, with the potential for criminal charges, fell to the OHS team. It is further suggested that it was premature and temporally impracticable to fulfil the requirement in the immediate aftermath or within the wider 24 hour post- incident window subject of the plaintiff’s complaint. -- 35 of 56 -- 36 [117] I disagree with the defendant’s contention because, firstly, it is a too narrow interpretation of the guidelines, and secondly, it leaves a vacuum for post-incident response and support critical to minimising harm to staff in the immediate aftermath. [118] It seems to me that the guidelines should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach. They should be construed as a whole. They should be construed in a way which best achieves the apparent purpose and objects of post-incident management and investigation in light of the severity and outcome of an incident and balancing the relevant facts, circumstances and competing interests. [119] The scope of section 4 of the guidelines is for security incident management and investigation. Section 4.1 requires each health service district or major facility to nominate a Protective Security Coordinator to facilitate development and implementation of local procedures and systems. Section 4.2 provides for the underpinning principles that effect incident management involving the relevant people and organisation, including fairness, accountability, transparency, improvement focus, focus on systems not individuals, obligation to act, and prioritisation of action. Section 4.3 deals with measures for appropriate incident reports, including that: “All staff should immediately report security incidents to facilitate prompt incident investigation and appropriate response.” [120] This will then inform the scope of the investigation procedures, which is the subject of section 4.4 including the considerations for development of investigation procedures including: promptness, supportiveness and non-judgment, focus on underlying root causes and contributing factors, no apportion of blame, system breakdown and prevention of recurrence, consultative investigations, canvasing all information sources, operational review and clear recommendation outcomes. Responsibility for an investigation is to be placed on a particular individual internally, or externally for more serious situations, with the expectation that questioning would be done while memories are fresh and cognisant of potential legal implications and individual rights. Section 4.5 provides for the control and preservation of an incident scene including first aid, handover to police and maintenance of documentation and records. As to first aid, subsection 4.5.1 provides that: “First aid or assistance should be provided to injured persons until the arrival of emergency services or a clinician. Further information contained in OHSMS 2-25#21 First Aid Resources Work Practice Directive.” [121] Sections 4.6 and 4.7 deal with preserving evidence and safe handling of illicit drugs or hazardous substances, respectively. Section 4.8 provides for referral of persons suffering physical or psychological injury to the District Occupational Health and Safety Unit, Rehabilitation in accordance with Capitals OHSMS 3#21 Queensland Health Injury Management policy. Sections 4.9 provides for broader strategic matters of post-incident management including: • Procedures for reporting the incident; • Investigation of the incident to identify when it occurred, who was involved and what could be done to prevent recurrence; and -- 36 of 56 -- 37 • Procedures for providing support to any person/s involved in or affected by the incident. For example, Employee Assistance Program and Victims of Crime. [122] The provision also suggests appropriate actions which convey a sense of immediacy, depending upon the severity and outcome of the incident, including: • Providing medical treatment; • Providing relief staff to allow individuals exposed to the incident time to recover and regain composure; • Incident debriefing; • Critical incident debriefing; • Counselling (individual or group sessions); and • Rehabilitation and return to work. [123] Section 4.10 then deals with the identification of suitably qualified personnel to fulfil the roles and functions of: • Coordination of the post incident response; • Conducting debriefing; and • Providing counselling. [124] I accept implementation of the higher co-ordinated investigation in accordance with the security incident management and investigation guidelines was not temporally possible within the window complained about. [125] However, I think the guidelines also provide for a more immediate response in the aftermath of an incident. This can be gleaned from the provisions dealing with the immediate aftermath including scene preservation (s 4.2), first aid (s 4.2.1), initial reporting responsibility (s 4.3) and action by earlier identified personnel in the responsive roles of supervision, debriefing, and/or counselling (s 4.10). Relevant here, by section 4.10.1, supervisors are expected to be at the ready to observe staff actions and work patterns, signs and symptoms of post incident psychological behaviour or ill health, provide support and advise the District Occupational Health and Safety Unit of the incident and its effects as soon as practicable following the incident. The function describes a vigilance and readiness to act immediately. This function of the supervisor’s role is clearly a precursor advising the District Occupational Health and Safety Unit for the post-incident investigation. The function of debriefing, although dependent upon the District developing debriefing procedures, is to occur as soon as possible after the incident so people affected can discuss the event, their thoughts, emotions and feelings in a ‘no blame’ atmosphere. I am not aware of any debriefing procedures being developed and available. [126] The tenor of the identified roles and functions in section 4.10 in the guidelines are in the nature of first responders to be at the ready as soon as possible post incident to identify signs and symptoms, provide support, conduct debriefing procedures developed by the District, provide counselling, and referrals. Further, In contrast to the broader strategic and investigative operation of the guideline provisions, section 4.10 requires action by the healthcare facility itself, here the Cairns Hospital, as distinct from the Health Service District or major facility, or the nominated Protective Security Coordinator, or the District Occupational Health and Safety Unit, or any other hierarchical bodies referred to in the guidelines. -- 37 of 56 -- 38 [127] The plaintiff’s supervisors were not aware of any identified qualified personnel to fulfil the roles and functions. Mr Brose, as acting nurse manager at the time, was not aware of staff identified for the roles, including himself. Ms Kenneally identified Mr Brose’s position as the starting point of the investigative process. Mr Brose also acknowledged some investigative role to ascertain the circumstance of the incident and refer the matter to the Occupational Health and Safety Department for a deeper investigation to analyse the whole situation from an occupational health and safety perspective. [128] Subsequent to Mr Brose’s initial report to the workplace health and safety unit, the defendant largely focused post-incident on the investigation process. Mr McGovern was the Workplace Health and Safety Manager for the Cairns Hinterland Hospital and Health Service at the time. He identified the appointed investigation officer as Ms Vine who is one of defendant’s Workplace Health and Safety officers. He had the responsibility of reviewing and signing off the investigation report of the “investigating officer and the line manager”. The report comprised an incident review report and an analysis report dated 19 January 2014, and was signed by Mr McGovern in late February 2014.60 He explained that “These incident analysis reports are done when we have a – an incident that’s reported through our incident management system that has had a serious outcome and a serious hazard has been identified. We then have to do an investigation into that incident.”61 He explained the process this way:62 “So the hospital and health service is quite a large service and spread out through a number of facilities across the region. So it encompasses quite a number of facilities and quite a large number of staff. We get a lot of incident reports through our Workplace Health and Safety system, and those incident reports, because they were paper based, take a little while to filter through the system. So the initial process is that when an incident occurs, the injured worker, or if they are unable to, a colleague or their line manager can complete an incident report on their behalf. The line manager is supposed to do an initial assessment to make sure that any hazards are controlled within their work environment, and then they sign off on that report and any actions that they’ve taken and forward that incident report up to their line manager, which is usually a director, and then those are forwarded to the Workplace Health and Safety Unit and recorded in the safety incident system. I see. And the process that you’ve just described, does it involve obtaining evidence from any source?---It depends on the individual incident. So if it’s a low-level incident, not necessarily. It can just be statements, but when it’s a severe incident like, in this particular case, there’s usually evidence supplied such as witness statements and so forth. When the incidents are reviewed by the Workplace Health and Safety officers, and we have a team of Workplace Health and Safety officers responsible for different areas across the hospital and health service, they review those incidents, and when they identify a serious incident, they get in contact with the line manager and determine whether an investigation is required. And, 60 Exhibit 22. 61 T3-18/25-25. 62 T3-18/45 – T3-19/47. -- 38 of 56 -- 39 obviously, in this case, it was, and then they go and do the investigation, collect the evidence and complete the investigation report. I see. And who was responsible for the carriage of the investigation in relation to this incident?---It’s usually the Workplace Health and Safety officer responsible for that particular area under the guidance of the safety manager, which is myself. Okay. You mentioned that statements can be taken. We’re familiar with the concept of CCTV footage being available?---Correct, all evidence. Is that obtained?---Yes, that’s correct. So in this particular instance and other instances relating around physical assaults or verbal assaults where people are claiming a serious incident has occurred, we – one of the first things we try to do is ascertain, obviously, witness statements that anybody actually witnessed the incident because that’s not always necessarily the case, and also whether any CCTV footage exists. So over my time in the last nine years, the hospital and health service has gradually, particularly at Cairns Hospital, increased the number of CCTV footage – or cameras that we have throughout the facility. So there’s been more and more evidence been able to be collected through that – that means. Now, this investigation process, does it operate under any particular guidelines? Do you have any guidelines that you refer to?---We only had our own particular work instructions for our unit. So investigations are required to be undertaken as part of our safety management system protocol, but it’s up to the hospital and health service to determine how those are. The incident report that we used was a Queensland Health recommended incident report.” [129] It seems to me that a reasonable person in the position of the defendant would have taken the precaution of implementing s 4.10 of the guidelines by a timely identification of suitably qualified personnel to fulfil the roles and functions of coordination of the post incident response, conducting debriefing; and providing counselling. Earlier identified personnel ready to act in the immediate aftermath would probably prevent the risk of an aggravation or more severe post-traumatic stress injury relevant risk, and I see no undue burden in its operation. [130] Therefore, I find that the defendant did breach its duty by failing to, in a timely way, identify suitably qualified personnel to fulfil the roles and functions post incident in compliance with the guidelines. The defendant failed to provide sufficient instruction, training and supervision for the guidelines to be actioned. [131] The plaintiff further alleges that the defendant also failed to implement and maintain systems to implement the guidelines by failing to provide sufficient instruction, training and supervision to Ms Kenneally and Mr Brose to enable them to implement the post-incident response required by the guidelines. [132] The defendant argues that the appropriate appointee sensibly required OHS expertise, and the appropriate person under the guidelines to investigate this serious issue, with -- 39 of 56 -- 40 the potential for criminal charges, fell to the Occupational Health and Safety team, therefore the function was outside the ambit of Ms Kenneally’s role in managing the ED, and apparently outside Mr Brose’s role as the acting nurse unit manager. [133] Whilst Ms Hood (clinical nurse and team leader), and Ms Kenneally (clinical nurse consultant) state they had no apparent training to respond to staff trauma. Ms Kenneally, as the senior nurse on duty that night, explained her responsibilities were “making sure the nurses on the floor were meeting the standards, our national standards, also being involved if there was any traumas that came in, resuscitation cases, being involved as the senior person there, just overseeing, making sure the staff were okay, if you – like, you know, the emergency department you can get multiple cases like that in one go. The evenings are busy in there, so you’re also there clinically to – you don’t get involved as much with the – the basic nursing care, it’s more the overseeing and making sure staff are able to not only do the work but get to their breaks. So it’s coordinating. We have a shift coordinator – at that time we had a shift coordinator at the front of house and we had another team leader at the back of house, and just making sure as well that they were okay, because there’s a lot of pressures, as you can imagine, in the emergency department.”63 [134] Mr Brose explained his role as nurse unit manager as being the human resource and operational manager of the entire department who worked in collaboration with the clinical director who is the medical officer having oversight of the emergency department. There were 165 staff, at that time, reporting through different tiers of nursing supervisors within the department, through to the nurse unit manager. It seems to me that a nurse unit manager was ideally placed to coordinate the initial response to an incident. While Mr Brose acted on his supervisory responsibilities to speak with the plaintiff and refer the matter to the Occupational Health and Safety Department, he was never identified as having the requisite qualifications or otherwise given the role and function prescribed by the guidelines. [135] Since no one was identified in the roles at the time of the incident, pursuant to section 4.10 of the guidelines, it must follow that there was no sufficient instruction, training and supervision to equip anyone to readily fulfil the roles and functions of coordination of the post-incident response, conducting debriefing, and provide counselling. It is not clear whether anyone in a more senior role was trained in how to support staff in the immediate aftermath of an assault and minimise the more serious onset of psychological injury. [136] In my view, a reasonable person in the position of the defendant knowing of the foreseeable risk of assault and serious psychological injury to staff, would have taken precautions to train personnel to quickly coordinate the post incident response, conduct debriefing and provide immediate counselling within the 24 hour window. I do not accept that it was untenable, implausible and impractical to so act in the immediate aftermath. It seems to me that that ready appropriate support, debriefing and counselling would probably prevent the risk of an aggravation or more severe post-traumatic stress injury following an assault, and I see no undue burden or expense in its operation. 63 T2-66/45-T2/67/10. -- 40 of 56 -- 41 [137] Therefore, I think the defendant also breached its duty to provide, in a timely way, sufficient instruction to appropriate personnel to supervise post incident response, conduct debriefing and provide counselling Was the defendant’s breach of duty a necessary condition of the occurrence of the injury (or did it make it more severe) and is it appropriate for the scope of liability of the person in breach to extend to the injury so caused? [138] Having found relevant breaches proof of causation is subject to the two-limb test involving considerations of factual causation and the appropriate scope of liability in section 305D: “305D General Principles (1) A decision that a breach of duty caused a particular injury comprises the following elements- (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation); (b) it is appropriate for the scope of liability of the person in breach to extend to the injury so caused. (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty – being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) – should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. (3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach – (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purposes of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty. [139] The requirements of these statutory provisions and the courts’ approach were recently examined by Ryan J in Corbin v State of Queensland [2019] QSC 110 in the context, like the present case of an assault, where an injury was caused by the criminal act of -- 41 of 56 -- 42 a third party.64 Having considered the referenced authorities also relied upon in this case,65 I respectfully adopt Her Honour’s summation as follows: “[239] Those authorities explain that – (a) the statutory provisions require an approach to causation which is different from the common law approach: Inghams v Tat; (b) the statute divides the causal determination into the elements of factual causation and scope of liability; (c) policy considerations inform the scope of liability judgment – that is whether legal responsibility should attach to the defendant’s conduct: Strong v Woolworths; (d) factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of particular harm; a necessary condition is a condition that must be present for the occurrence of particular harm: Strong v Woolworths; (e) there may be more than one set of conditions necessary for the occurrence of particular harm, and a defendant’s negligent act or omission, which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm, will meet the test of factual causation in section 305D(1)(a); in such a case the defendant’s conduct may be described as contributing to the harm: Strong v Woolworths; (f) recognising that changing any of the circumstances in which the injury occurred might have made a difference does not prove factual causation: Adeels Palace; (g) factual causation is not proved by pointing to possibilities that might have eventuated if circumstances had been different: Adeels Palace; (h) the question of factual causation is not answered by pointing out that the relevant duty of care (in the Adeels Palace case) was to take reasonable steps to prevent violent assault, and that the damage sustained by the plaintiffs was “the very kind of thing” which the relevant duty obliged Adeels Palace to take reasonable steps to prevent. That observation may bear upon questions about scope of liability. Describing the injury as “the very kind of thing” which was the subject 64 Corbin v State of Queensland [2019] QSC 110 at [239]. 65 Inghams Enterprises Pty Ltd v Tat [2018] QCA 182 esp. at [50], [54], [75]-[57] ; Strong v Woolworths Ltd (2012) 246 CLR 182 esp. [18-27]; The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 esp. at [38]-[41], [42]-[43], [45]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [47]-[57]; and Eastment v State of Queensland [2018] QCA 253. As to post- incident management of the assault (which is analogous to a critical incident in emergency services terms) I have also considered: Hegarty v Queensland Ambulance Service [2007] QCA 366; The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103; James v State of Queensland [2018] QSC 188; and Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12. -- 42 of 56 -- 43 of the duty must not be permitted to obscure the need to prove factual causation: Adeels Palace; (i) In Adeels Palace, the “but for” test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel, the shootings would not have taken place. That is, the absence of security personnel on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm [the equivalent of s 305D(1)(a)] was not satisfied. The question then was whether the [the equivalent of s 305D(2)] applied: Adeels Palace; (j) Section 305D(2) applies to an exceptional case: a case in which negligence cannot be established as a necessary condition of the harm – the “but for” test cannot be established. In such a case, a court must consider whether or not, and why, responsibility for the harm should be imposed upon the negligent party: Adeels Palace (k) Whether or when section 305D(2) is engaged depends upon whether, and to what extent “established principles” countenance departure from the “but for” test of causation: Adeels Palace (l) It would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence: Adeels Palace. [240] In Adeels Palace, the High Court said: “... the event which caused the plaintiffs’ injuries was deliberate criminal wrongdoing and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person’s criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs’ injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected.” [140] I am also assisted by other decisions dealing with assaults by third parties occurring in the workplace, and later negligent actions against the relevant employers,66 and 66 Adlington v Domino’s Pizza Enterprises Limited [2016] QDC 84; Baillie v Jackson & Anor [2015] QDC 31; Brisbane Youth Service Inc v Beven [2017] 2 QdR 295; Love v Lindsay Brothers Management Pty Ltd [2013] QDC 174; Lusk v Sapwell [2011] QCA 59; Marshall v GJ & KM Church & Anor [2015] QDC 248; Packer v Tall Ships Sailing Cruises Aust Pty Ltd & Anor [2014] QSC 212 (an unsuccessful appeal did not concern the employer); Serra v Couran Cove Management Pty Ltd [2012] QSC 130; Eastment v State of Queensland [2018] QCA 253; and Inghams Enterprises Pty Ltd v Tat [2018] QCA 182. -- 43 of 56 -- 44 cases dealing with the post-incident management of an employee.67 Of course each case will turn on its own facts and circumstances. [141] As to the considerations of causation, the burden of proof is on the plaintiff pursuant to s 305E of the WCRA as follows: “305E Onus of proof In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” [142] The plaintiff accepts that he carries the burden of proof having regard to all the evidence adduced in the case and available inferences, including the application of the observations of Lord Mansfield in Blatch v Archer (1774) 98 ER 969.68 However, the defendant cautions against the plaintiff’s analysis of breach of duty through the prism of hindsight, and emphasises the need for the plaintiff to prove that a relevant breach would, not might, have prevented the harm for causation under section 305D.69 Was the defendant’s breach of duty a necessary condition of the occurrence of (or by making more severe or worsen) the plaintiff’s injury? [143] Having concluded that the defendant did breach its duty of care to the plaintiff to take precautions by failing to provide staff with refresher training and by failing to identify and train personnel to undertake timely post-incident management – the test of factual causation is whether ‘but for’ the alleged breach of duty, the event giving rise to the injury (or its worsening) would, as a matter of probability, not have occurred. Failure to provide regular and up-to-date training to its employees including the plaintiff on how to manage the risk. [144] In hindsight the plaintiff concedes that his action in taking off the blanket was the immediate cause of the conduct of the patient, causing the injuries complained of in this proceeding.70 His blanket removal could, indeed ought, to have been handled differently by a nurse with the plaintiff’s experience. [145] Here the plaintiff was dealing with a patient who displayed several indicia of potential aggressive behaviour as identified in the training manual: (a) The patient had a history of aggression; (b) He was intoxicated with a likely smell of alcohol; 67 Hegarty v Queensland Ambulance Service [2007] QCA 366; The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103; James v State of Queensland [2018] QSC 188; Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12; and Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 (as to loss of a chance). 68 Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17] per Gleeson CJ, [35]-[51] per McHugh J, [237] per Heydon J, & Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201; Australian Securities and Investments Commission v Hellicar (2012) 286 ALR 501 at [169]; Michail v Australian Alliance Insurance Company Ltd [2014] QCA 138; Rossi v Westbrook & Anor [2013] QCA 102 at [30] – [38]. See also Cairns Regional Council v Sharp [2013] QCA 297 at [32]. 69 Defendant’s submissions paras 65, 78, 79, 136, 137 and Defendant’s Reply Submissions paras 54-61. 70 Plaintiff’s Outline of Argument – para. 43. -- 44 of 56 -- 45 (c) He refused to cooperate when asked to be ready to take his turn for treatment; (d) He displayed poor judgment, disorientation, and disinhibition; and (e) He was verbally abusive. [146] Despite all this indicia, the plaintiff showed his distain toward the patient by poorly communicating, being overtly hostile by first removing his blanket without asking, disturbing his slumber, demanding that the patient be ready (rather than asking), showing a tense and impatient posture as he departed, returning with a hostile demeanour, again disturbing his slumber by swiftly, abruptly, and forcefully removing the covering blanket, and then violating the patient’s body space. [147] Employers must take into account the possibility of thoughtlessness or inadvertence or carelessness.71 It seems to me that as the plaintiff, nearing the end of his shift, thoughtlessly and carelessly lapsed in his training on how to deal with a predisposed patient. Despite his experience, reputation, good work ethic and past training, the plaintiff seemed oblivious to the risk of an assault by returning to the patient’s side and putting himself in harm’s way. All of this is conduct was well recognised as triggers for patient aggression. It seems to me that absent the plaintiff’s triggering behaviour - it was unlikely that the patient would have assaulted the plaintiff as he did. Once the patient suddenly launched his attack, there was no time or space for the plaintiff to retreat or call for help. Instead he was forced to exercise his lawful right to defend himself (and others) by using reasonable and necessary force to restrain and remove the patient as he did. [148] In the result the plaintiff did sustain physical and psychological injuries discussed above. During his cross-examination, the plaintiff explained in relation to his consultation with Dr Ireland two days later - “normally things don’t actually affect me. And maybe this was just the last – this was the straw that broke the camel’s back. Maybe it was the lack of compassion and support from the Queensland Health”.72 It seems to me, consistent with the opinion of Professor Whiteford, that the plaintiff’s altercation with the patient on 19 January 2014 was not the sole cause of the plaintiff’s post-traumatic stress disorder. I think it is likely that the plaintiff was experiencing an onset of overt post-traumatic stress disorder symptoms from an accumulation of traumatic events over time. The conflation of these matters and the subject incident triggered the symptoms reaching the threshold for a diagnosis of post-traumatic stress disorder. [149] In my view, had the plaintiff received timely refresher training in aggressive behaviour management the assault and resultant injury would have likely been adverted. The defendant should have provided the plaintiff timely and frequent refresher training as required in the Implementation Standards, and the Aggressive Behaviour Management Training Manual. The plaintiff would have been refreshed about the predictors, behavioural cues, warning signs and early predictors, precipitators and triggers for patient aggression; self-regulation and expectations of staff conduct; the elevated risks of aggressive and provocative nursing; and appropriate communication and treatment of all patients. I think he would have acted 71 Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353. 72 T1-85/7-10. -- 45 of 56 -- 46 on any refresher training given his reputation as a dedicated and good nurse who was keen to learn and improve the incidence of violence in the emergency department. Mr Brose said, as his line manager for a number of years -“If I needed something done, I could always go to Lance and he would never tell me no. He would – he was a – a really good employee.” I do not accept Mr Belsire’s evidence that such matters involve common sense. The dynamic facing the plaintiff was different to merely waking a patient for the purposes of undertaking observations or administering medication. The circumstances were properly the subject of aggressive behaviour management training. [150] Therefore, I am satisfied that the defendant’s failure to provide the plaintiff with timely (even if not annual) refresher training was a necessary condition of the occurrence of the injury resulting from the assault and it is appropriate for the scope of liability to extend to the injury so caused. This then brings me consider whether his injuries were aggravated by the aftermath that unfolded in the following 24 hour post incident window. Failing to identify qualified personnel for post incident coordination, debriefings and/or counselling; and failing to provide sufficient instruction, training and supervision to Ms Kenneally and Mr Brose. [151] The incident involved an assault of a nurse, an altercation between a nurse and patient awaiting treatment in a hospital emergency department, and the nurse’s forced removal and ejectment of that patient form the hospital. Such a serious incident enlivens issues involving complex and conflicting duties and interests not only impacting staff health and safety, but also patient treatment. Early post-incident support and management of the plaintiff was critical to any aggravation of his injury. [152] I accept that Ms Hood was not in the appropriate supervisory position or qualified to deal with the plaintiff. [153] However, the absence of any identified personnel adequately trained for post incident first aid co-ordination and counselling left the plaintiff exposed to aggravation of his condition, manifesting in a more severe injury. [154] Ms Kenneally was the clinical nurse consultant managing the emergency department. Contrary to the defendant’s assertions, having regard to the scope of Ms Kenneally’s role and duties, I think it was temporally possible for her to fulfil a useful function within the window after the incident and the plaintiff’s departure. She actively sought out and engaged with the plaintiff on a busy Sunday night in an emergency department of a public hospital. However, she was ill-equipped in dealing with the plaintiff. She did not recognise his overt symptoms of post-traumatic stress disorder - his escalating anger and agitation, that he was unusually shaking and had signs of shock, he rebuffed her suggested support, and was disengaged. Whilst Ms Kenneally’s recommendation for the plaintiff to undertake a medical review at triage, and her reference to Mr Brose, was commendable, the damage was done. Her hostile manner, tone and choice of words was inappropriate and were likely to be perceived by the vulnerable plaintiff as a reprimand and accusatory. She did not approach the matter in a non-judgmental way. In his deteriorated state the plaintiff became observably angry and upset, agitated exasperated and inconsolable, defensively hostile and unreceptive to Ms Kenneally’s other efforts to talk in a private place. I think the plaintiff’s perception of unsupportive hostility from his superior -- 46 of 56 -- 47 was authentic and consistent with his state of mind. This was the cause of aggravation of the plaintiff’s condition, a catalyst for his resolution to stop work and seek compensation because of the incident and his treatment, and a source of overnight rumination about what he’d done wrong. [155] Having regard to the expert psychiatric evidence I am satisfied that the plaintiff’s exchange with the untrained Ms Kenneally did aggravate the plaintiff’s condition resulting in a more severity of the plaintiff’s psychiatric injury. That is, his post- traumatic stress disorder was aggravated by reprimand or accusation that he had misbehaved inappropriately towards that patient when restraining him. The defendant’s failure to properly identify and train qualified personnel to deal with the plaintiff was a necessary condition of the occurrence of the plaintiff’s more severe injury and it is appropriate for the scope of liability to extend to any injury caused. [156] I now turn to the following day and the plaintiff’s exchange with Mr Brose. [157] I accept that the spirit of the guidelines were applied by Mr Brose despite not be identified, qualified or trained in any role or function to implement the guidelines. Further, I think the defendant’s conduct through Mr Brose falls short of the requisite causal link. In my view Mr Brose was not provided with a sufficiently detailed account of the incident or post incident conversation with Ms Hood and Ms Kenneally. Having regard to his responsibilities, I think it was proper and reasonable for Mr Brose (consistent with the guidelines) to express concern that the plaintiff had possibly assaulted the patient. In a situation where dual equal duties were owed to staff and patients alike, and an altercation has occurred between the two, I do not accept that a supervisor has an obligation to simply accept the staff member’s account without questioning or verbalising concerning conduct. I think Mr Brose was non- judgmental; he did not otherwise verbalise any attribution of blame of the incident and displayed concern to the plaintiff for his well-being. However, Mr Brose was alert to the emotional effect of the incident and the exchange with Ms Hood and Kenneally on the plaintiff. He was sufficiently concerned about plaintiff’s uncharacteristic behaviour and overt anger to undertake an informal debriefing, counsel him about the Employee Assistance Scheme programme, refer him to others, and discuss a WorkCover claim. Although not aware himself of anyone being appointed in accordance with the guidelines he seems to have undertaken like strategies. [158] However, even though the efforts of Mr Brose are commendable, by that time the plaintiff’s condition had inextricably crystallised in any event. The same can be said by the time that the plaintiff spoke to Ms Spalding who was more rehabilitative She performed her function optimally, even to the extent of assisting the plaintiff with obtaining proper medical care, without judgment. By then it was too late. [159] Therefore, the defendant’s failure to properly identify and train qualified personnel to deal with the plaintiff by the time he spoke with Mr Brose and Ms Spalding was not a necessary condition of the occurrence a more severe injury. The intervention by Mr Brose or different intervention by any other identified and trained personnel would not, as a matter of probability, have ameliorated the condition. Conclusion on liability -- 47 of 56 -- 48 [160] I conclude that the defendant is liable to the plaintiff for breaching its duty to take precautions against a relevant risk and thereby caused his physical and psychiatric injuries. General Damages [161] The assessment of general damages requires an injury to be categorised within Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). For the dominant psychological injury, the alternative items within Schedule 9 Part 2 Item 10, 11, 12 and 13, are relevant. The Injury Scale Value is assessed by reference to the Psychiatric Injury Rating Scale contained in Schedule 11 of the Regulations. [162] Dr Cantor’s initial report assessed the plaintiff with a PIRS impairment of 7%, which means that the appropriate assessment is within Item 12 with an Injury Scale Value of between 2 and 10. Compared to Professor Whiteford, Dr Cantor found higher functional impairment under Schedule 11 in the areas of social and recreational activities (class 3), concentration, persistence and pace (Class 2) and adaption (class 5). Although Dr Cantor opined that 15% impairment would be more realistic, he felt constrained by the PIRS rules to assess the plaintiff at 7%. [163] Whilst I prefer the opinion of Professor Whiteford as being based on a more accurate factual matrix, I think his assessments for functional impairment in the areas of social and recreational activities (class 1), concentration, persistence and pace (class 1) and adaption (class 2) is too low, incongruent with the evidence, and fails to account for reactivation of more pronounced symptoms upon re-exposure to work. This undermines the professor’s PIRS assessment of 1 per cent and placing ISV of 1 within Item 13 in Part 2 of Schedule 9, being a minor mental disorder with very little impact on the plaintiff’s life. [164] I accept the evidence of the plaintiff and his former wife to the effect that the plaintiff was very social before the incident but has since abandoned social pursuits. He enjoyed meeting people, going to parties, social events after salsa dancing, and social gatherings with colleagues. Since the incident, the plaintiff has reduced tolerances, he has withdrawn from friendships, he stopped talking to friends except coffee with one acquaintance and avoids social settings. He is able to socialise with his family and has managed to travel to Europe (although this overlaps with the considerations of travel). On my reckoning, these factors support an assessment of a moderate level of impairment for social and recreational activities in the higher end of class 3 of Schedule 11. [165] I also accept the plaintiff’s evidence that he has difficulty concentrating and struggles to retain information in his short-term memory. I accept that he forgets to pay bills and attend appointments. Although he can casually read up to an hour, his impaired concentration saw him abandon a diploma course in counselling after only 6 weeks. These factors support an assessment of a moderate level of impairment for concentration, persistence and pace in the middle to low range in class 2 of Schedule 11. [166] I accept that the plaintiff is unlikely to return to nursing in a hospital emergency department or other environment where he is at risk of antagonism, abuse, threats or insult. His initial enthusiasm to return to work was severely dampened by the poor reception, mundane tasks and disorganisation. His registration has been suspended -- 48 of 56 -- 49 by virtue of his state and he remains unemployed. However, I think he is able to return to remunerated employment. The plaintiff’s good work ethic has seen him in voluntary unpaid work, but he struggled with hospital visits and contact with people with like challenges. These factors support an assessment of a moderate level of impairment for adaption in the higher end of class 3 of Schedule 11. [167] Moderating Professor Whiteford’s assessment with these matters73 would see a median class score74 of 2 and a total score75 of 12, resulting in a PIRS rating of 6% in accordance with schedule 10 for the plaintiff’s dominant psychological injury. A PIRS assessment of 6% means an appropriate assessment a moderate psychological impairment within Item 12 of Part 2 of Schedule 9 with an Injury Scale Value between 2 and 10. [168] The considerations under Part 2 of Schedule 9 are not confined to the PIRS rating on the psychiatric impairment rating scale set out in Schedule 11. The relevant factors affecting ISV assessment include: (a) PIRS rating (b) Degree of insight; (c) Age and life expectancy; (d) Pain and suffering; (e) Loss of amenities of life; and (f) Likelihood difficulties would have emerged in any event. [169] The plaintiff’s insight into his predicament has improved overtime, but even at trial he struggled to see viable ways forward in other areas of nursing or administration. The plaintiff has a vocational history, interest and passion in nursing, medical and caring roles. The plaintiff is nearly 60 years old and likely to have a full life. I accept that the plaintiff suffered both physical and psychological injury in the incident, which was further aggravated by the suboptimal treatment by his colleagues and superiors. His has endured a loss of the amenities in his personal and professional life consequent upon his withdrawal from fulfilling work including friendships and socialisation, recreation and untrammelled travel. Unfortunately, his past occupational exposures, life’s challenges, exasperation, frustration and feelings of burnout, elevate the likelihood that difficulties may have emerged in any event. His past experiences also speak to his elevated immediate adverse psychological reaction, intense feelings of horror, blameworthiness and helplessness. [170] The plaintiff also seeks an uplift for his physical injuries suffered in the altercation. Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee resulting in a 1% whole person impairment, stiffness to his shoulders, and had aggravation of pre-existing degenerative changes in his lumbar spine as well as osteoarthritis in his left knee. In my view no further uplift is warranted having regarded the plaintiff’s physical injuries, and the nature and extent of the broad considerations in assessing his dominant psychological injury. 73 Self-care and personal hygiene - 1; social and recreational activities – 3; travel – 1; social functioning – 2; Concentration, persistence and Pace – 3; and Adaption – 3. 74 Using the following class numbers in ascending order 1, 1, 2, 2, 3, 3 = 2. 75 Total Class Score calculated as 1 + 1 + 2 + 2 + 3 + 3 = 12. -- 49 of 56 -- 50 [171] It seems to me that after taking these matters into account, the plaintiff is appropriately assessed with an ISV of 8 pursuant to Table 4 in Schedule 12 of the regulations.76 [172] Therefore, I assess general damages in the sum of $11,290. Economic loss [173] The plaintiff argues that as a consequence of the injuries, he has been unable to return to work, and relied upon Dr Cantor’s evidence to that effect. [174] The defendant argues that the plaintiff has a capacity to work in a different area of nursing or other vocation. It relies upon Professor Whiteford’s acknowledgment that the plaintiff cannot return to his previous position, but says he is able to return to remunerated employment in a wide variety of nursing, caring or other roles, not involving potential exposure to violence and aggression. [175] The defendant properly concedes that the plaintiff is entitled to loss of earnings over the period he was assessed as unfit to work whilst in receipt of WorkCover weekly benefits. This is a sum of $51,028.96.77 It also concedes that the plaintiff could not have returned to work as an emergency department nurse, and that there should be some assessment to reflect that inability over the period since WorkCover benefits ceased until the end of the trial being 29 April 2019. It is submitted an appropriate measure is the difference between an emergency department nursing role and a role such as day surgery that would not have involved weekend and night shifts might sensibly be measured at $200.00 net per week. [176] The evidence of Ms Kenneally, Mr Brose and Ms Spalding was of the plaintiff forming an intention to cease work and “go to WorkCover” soon after the subject event and before any medical opinion had been obtained. He was also unreceptive to engaging in the employment assistance program. Ms Spalding noted the plaintiff’s unwillingness to pursue other employment options.78 All of these matters are entirely consistent with the circumstances and his state of mind at the time, and not reliable indicia of wanting to stop working. It seems to me that until the incident the plaintiff continued to approach his work conscientiously with dedication and enjoyment; he was looking forward to going into senior management, and he was likely to continue working until conventional retirement age. [177] The plaintiff made an early genuine effort to return to his work, then attempted study in counselling and undertook challenging voluntary unpaid work. [178] The plaintiff’s attempt to return to work with the defendant were unsuccessful. But do not glean any insurmountable occupational limitations in his nursing ability for doing so, rather other factors spoiled his return, such as the defendant’s poor reception, allocation of mundane tasks and workplace disorganisation. He did not complete his counselling course due to impaired levels of concentration and motivation. Whilst he continues in volunteering with returned servicemen, he has struggled with hospital visits and contact with people with like challenges. 76 Calculated at (ISV 8 - 5) x $1580 + $6550 = $11,290 under Item 2 of Table 4 of Schedule 12. 77 Exhibit 25, page 6. 78 Exhibit 24. -- 50 of 56 -- 51 [179] While not ultimately successful, the plaintiff continues to show a good work ethic, cautious resilience, improved motivation and some adaptability in a range of activities. I think he does have prospects of being able to return to remunerated employment in the future. [180] The court must make a practical assessment of the likelihood of the plaintiff obtaining employment in some new or other occupation. In Arthur Robinson (Grafton) Pty Ltd v Carter,79 Barwick CJ observed that lost earning capacity “ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate”, a remark interpreted by Malcolm CJ in Morgan v Costello80 as supporting the proposition that “the Defendant who contends the Plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the Plaintiff is capable of performing and what jobs are open to a person with such capacity.” [181] The defendant has produced evidence of potential other employment and I am persuaded that the plaintiff would be successful in obtaining and retaining such employment.81 The tenor of the defendant’s proof through Professor Whiteford was of an exclusionary nature consistent with the scope of his opinion about the plaintiff’s incapacity for work. Accordingly, I find that the plaintiff is incapable of working in nursing, caring or another role in an emergency department, hospital or other environment where he is at risk of exposure to antagonism, abuse, threats, insult, violence or aggression. He also has faced other occupational challenges with the registration being voluntarily suspended out of his concern of for his anger issues and fear of hurting patients. [182] He does face some hurdles and delay re-entering the workforce. He will be unable to return to work as a registered nurse until and unless his registration is reinstated. His age and absence from work will disadvantage him in the open labour market. However, I do not accept that he is commercially unemployable. His vocational skills and experience will stand him in good stead in suitable areas of need. In the circumstances it is not possible to precisely calculate future economic loss and a global sum is preferred. Any award should also reflect the occupational exposures of his vocation with the prospect of the development of a post-traumatic stress condition from another bellicose event, having regard to a history of past exposure with pre- existing vulnerabilities reported to Dr Ireland, and the plaintiff’s exasperation, frustration and feeling “burnt out” with ED nursing as articulated to Ms Kenneally, Mr Brose and particularly Ms Spalding. [183] While the plaintiff’s efforts of gaining remunerative work have been unproductive, I do not accept that that he has no prospect of work in less risky work environments whether in nursing, care or allied administration. He was unconvincing in his rejection of the defendant counsel’s propositions of vocations in areas of day surgery such as colonoscopy and post-care procedure. I think with time and a progressive outlook his work prospects are relatively optimistic with an improving capacity to work more consistent with the opinion of Professor Whiteford. More conservatively, I think the plaintiff had a graduated improvement in his working capacity after 3 years, with a further improvement after 2 years, and stabilisation after another year 79 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657. 80 Morgan v Costello [2004] WASCA 260 at [99] per Malcolm CJ (Murray and Wheeler JJ agreeing). 81 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at 73-74, New South Wales v Moss (2000) 54 NSWLR 536 at [64] and [71]. -- 51 of 56 -- 52 enabling his to work in areas of nursing, care and allied administration commensurate with his impairment, qualifications, skills and experience. Past Economic Loss [184] On this basis, I accept that diminution of the plaintiff’s earning capacity at this phase of his treatment, recovery and rehabilitation has realised a true financial loss, but with a graduated improvement in his earning capacity over the 327 weeks since the incident. [185] I assess the plaintiff’s past economic loss at $237,760 calculated at $187,200.00 at $1,200 net per week for 156 weeks, then two third loss of earning capacity, $83,200.00 at $800 net per week for 104 weeks, and further one third loss of earning capacity, $26,800.00 at $400 net per week for the 67 weeks and then applying a discount of about 20 per cent for the plaintiff’s vicissitudes of life and vocational contingencies. [186] I also allow interest of $8,219.76 on past economic loss (excluding WorkCover weekly benefits and lumps sum payments) using the agreed 10 Year Treasury Bond rate 0.7% calculated for the period from the incident until this judgment.82 [187] I will allow past superannuation loss of $22,587.20 using the average rate for past employer superannuation contributions over the period since January 2014 of 9.5 per cent. Future Economic Loss [188] An award for future economic loss should equate to the reduction in the plaintiff’s earning capacity to the extent that it may be productive of financial loss. This is difficult to assess with precision using a defined weekly loss since the plaintiff has not realised a successful return to work. [189] Section 306J of the WCRA provides: 306J When earnings can not be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. 82 $186,731.04 (being $237,760 less $51,028.96 total WorkCover weekly benefits and lump sum) x 0.7% pa x 327/52 weeks (19/1/14 – 24/4/20) = $8,219.76. -- 52 of 56 -- 53 (4) The limitation mentioned in section 306I(2) applies to an award of damages under this section. [190] In Allianz Australia Insurance Limited v McCarthy,83 White J remarked about the analogous provision, s 55 of the Civil Liability Act, as follows: “[47] ... Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law. [48] In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted: “… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.” That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission: “A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence- caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the diminution of … earning capacity is or may be productive of financial loss.” [49] In Nichols v Curtis Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury: “The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.” [50] His Honour continued: “Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for 83 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312. -- 53 of 56 -- 54 loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”” (Footnotes omitted.) [191] The plaintiff will be 60 years old in December and is likely to retire near to 67 years of age. [192] I will allow a global award of $100,000 for future economic loss. In doing so, I rationalise the outcome by adopting a loss of earning capacity of $400 net per week and using the 5 per cent multiplier of 309.4 for 7 years to achieve about $123,772.38, and then applying a discount of about 20 per cent for the plaintiff’s vicissitudes of life and his vocational contingencies. [193] I also allow $11,000 for future superannuation being 11% of future economic loss Special Damages [194] There is no dispute about the plaintiff’s claim to recover the expenditure by WorkCover for medical treatment, rehabilitation and travel of $16,517.94,84 Medicare refund up to 16 February 2019 of $1,091.00 and claimed out of pocket expenses of $1,250.00 for medication and travel. [195] The plaintiff also claims vouched expenses of for massage therapy and psychological treatment $8,485.00.85 [196] I will allow part of those expenses of $3,685.00 in relation as reasonable and necessary expenses consistent with the nature and extent of his psychological injuries and continuing sequalae. [197] As for the massages, the plaintiff says that he received regular massages to treat his physical injuries, but he is not specific about the area or purpose of the treatment. He has produced a nondescript tax invoice/statement dated “January - April 2014” to vouch for 30 massages all of 90 minutes duration at the cost of $160 per treatment. The plaintiff testified that he continued to experience pain in his shoulders, back and knees since the incident but provides no details about the therapeutic benefit of massage treatment. [198] Dr Shephard, orthopaedic surgeon, concluded that the plaintiff had suffered a medial meniscal tear to his right knee, had stiffness to his shoulders, and aggravation to pre- existing degenerative changes in his lumbar spine and osteoarthritis in his left knee.86 The doctor does not specifically remark about the need for massage treatment. 84 Exhibit 25. 85 Exhibit 2, annexure 15 and 16. 86 Exhibit 14. -- 54 of 56 -- 55 [199] I accept that massage may provide some muscular pain relief to stiff shoulders, but I am unable to say the same for the other conditions. Therefore, I allow part of the massage expenses in the amount of $960.00 being about 20% of the time per massage for 30 massages. [200] I allow the plaintiff’s proved expenses of $23,503.94. [201] I also allow interest of $259.49 on out of pocket special damages of $5,895.00 using the agreed 10 Year Treasury Bond rate of 0.7% calculated for the period from the incident until this judgment.87 Future Expenses [202] Dr Shepherd opined that the Plaintiff may benefit from an arthroscopic meniscectomy of his right knee, however, I received no evidence of time or cost of that surgery, post- operative treatment or rehabilitation. I make no allowance for this. [203] I have not holistically accepted either Dr Cantor or Professor Whiteford in their assessments, which impacts the need for further psychological treatment. Given my remarks about their approaches and tending to an impairment assessment closer to Dr Cantor’s constrained PIRS assessment, I think plaintiff does require continuing treatment and support likely comprising: 1. 8 sessions with a Psychiatrist over 6-12 months at a cost of $325 per session; 2. 15 to 18 psychological sessions over 12 months at $228 per session; 3. Use of anti-depressant medication at $38 per month for up to 2 years; 4. 8 to 10 GP mental health care consultations per year for 2 to 3 years and then 4 per year for a further 5 years at a cost of $160 per attendance. [204] I allow the plaintiff’s future medical expenses in a global sum of $10,000 having regard to his likely future expenses discounted into the future. Quantum Summary [205] In summary, I assess $357,073.49 including interest as damages after refunds to WorkCover is as follows: General damages $11,290.00 Past economic loss $237,760.00 Interest on past economic loss $8,219.76 Past superannuation $22,587.20 Future economic loss $100,000.00 Future superannuation $11,000.00 Past special damages $23,503.94 87 $5895 ($1,250 + $3,685 + $960 out of pocket) x 0.7% pa x 327/52 weeks (19/1/14 – 24/4/20) = $259.49. -- 55 of 56 -- 56 Interest on past special damages $259.49 Future special damages $10,000.00 Sub-total $424,620.39 Less WorkCover refund -$67,546.90 Total $357,073.49 Conclusion [206] For these reasons, subject to any arithmetical correction: 1. I will give judgment to the plaintiff against the defendant in the sum of $357,073.49 including interest. 2. The defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) on and from 13 October 2015 to be assessed on the standard basis. Judge DP Morzone QC -- 56 of 56 --