Sia v. The Frank Whiddon Masonic Homes of NSW [2004] NSWCA 466

Sia v. The Frank Whiddon Masonic Homes of NSW [2004] NSWCA 466 - NSWCA 2004 case summary — Zoe

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CIRCUMSTANCES 4 The appellant was born in The Philippines in 1957. She arrived in Australia in 1987, and shortly afterwards became registered as a nurse. 5 In February 1996, she commenced working for the respondent, which operated a nursing home complex at Glenfield, as Assistant Director of Nursing and Dementia Co-Ordinator Consultant. 6 The appellant went on maternity leave in 1998, shortly before the birth of her son in July 1998. She returned from maternity leave on 25 August 1999. 7 On her return from maternity leave, the appellant was employed in nursing duties at the Sir David Martin Ward, a ward with 45 residents, about half of whom had dementia. She became familiar with residents there, including one David Smith. She described him as a very nice man who always followed her around. She did not notice any aggressive behaviour. However, she did give the following evidence: Q. Up until 15 September were you told anything about Mr Smith? A. No, but one - one time I - because I tend - I begin to like Mr Smith because I thought he was very nice and I said to one of the night sister that Mr Smith was very nice and then he said to me I should be very careful with him I said but he was nice, he just told me that I should hide. 8 This matter was referred to again in cross-examination, as follows: Q. And what steps did you take, Mrs Sia, to look into that matter in any more detail? A. When she said - when she said that to me I said to - I said to Gillian, "But he is - he was very nice Gillian" and then he didn't say - he didn't say any more - he didn't - he didn't even tell me that - oh, Sister Sia, he can be very, very aggressive and he could have hit you, you know, and he didn't tell me that. Q. You say "he" -- A. She didn't tell me that - sorry. … Q. … But what steps did you take after getting this information from Nurse Gray? What steps did you take to look into Mr Smith's file to see if there was anything to support her concern? Did you do anything? A. I was on my - actually that was when I was giving the report, end of the shift-- Q. Did you do anything, Mrs Sia, about it? Yes or No please? A. No. 9 Apart from that incident, the appellant was not informed that Mr. Smith was aggressive or had attacked any of the staff. However, notes of Ms. Duguid, a recreational officer employed by the respondent, recorded incidents of aggression by Mr. Smith, notably on 7 September 1999 and 9 September 1999, as follows: 7-9-99 David was physically aggressive to me this morning whilst I was talking with other residents, he grabbed hold of my arm and started squeezing when asking him to let go he got more aggressive towards me.

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LIABILITY 29 Although the explanation for delay in putting on the cross-appeal is not satisfactory, there is no prejudice to the appellant, and I would grant leave to bring the cross-appeal out of time. 30 One submission sought to be advanced concerning liability was that the appellant's account of the incident, as set out above, which was recounted and apparently accepted by the primary judge, was contradicted by evidence from Sister Standring, who said she saw no aggression by Mr. Smith. However, this version was not put to the appellant in cross-examination when the appellant gave evidence in her case, and no application was made to further cross-examination after Sister Standring gave her evidence. In those circumstances, I do not think the primary judge's acceptance of the appellant's version, or her lack of reasons for doing so, is a matter appropriate for appellate intervention. 31 The main submission concerning liability was to the effect that the appellant was an expert in dementia care, that the prior incidents involving Mr. Smith were not so significant as to require reporting, and that even if they had been reported, it was not shown that a reasonable response by the respondent would have prevented the incident. Particularly was this so when the warning that the appellant had in fact received did not prevent the incident, notwithstanding her expertise in dementia care. 32 In my opinion, it was open to the primary judge to conclude that the prior incidents, particularly that of 7 September, should have been reported; so that the non-reporting meant either that there was inadequacy in the system to identify what should be reported, or else there was a failure to comply with the system. 33 As regards what should have happened if the incident had been reported, the primary judge mentioned the alternatives of monitoring Mr. Smith, transferring him to a secure environment such as the area known as Raines 1 or arranging a medical review. In my opinion, even the first of these would at least have put the appellant well and truly on her guard, and done so much more effectively than the casual and unsubstantiated warning that had actually occurred. Although it was put for the respondent that Raines 1 was not really a secure environment, at least it had a more favourable staff to resident ratio than the Sir David Martin ward. A medical review could have led to appropriate medication, or a decision to send Mr. Smith to a psychiatric hospital, as in fact subsequently occurred after a further accident. In all those circumstances, in my opinion the case was one where it could properly have been considered that a failure of the respondent's system gave rise to a risk that the system should have minimised, which did in fact eventuate into injury to the appellant; so that there was an evidentiary onus on the respondent to show that the injury would have occurred anyway. 34 For those reasons, in my opinion it was open to the primary judge to find that the respondent's breach of duty caused the injury to the appellant.

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DAMAGES 35 Mr. Aldridge SC for the appellant submitted that the primary judge's acceptance that there was an element of conscious exaggeration of the appellant's condition, on the basis of the evidence of Dr. Roberts, was unsupported by any consideration or findings as to the credibility of sworn evidence given by the appellant, and this in circumstances where there had been no cross-examination directed to the question of whether the appellant was consciously exaggerating her symptoms. It was true that the evidence of Dr. Roberts was unchallenged in the sense that she was not cross-examined, and there was no evidence in reply dealing with the particular tests she had administered; but Mr. Aldridge submitted that if the appellant's sworn evidence as to her pain, and as to what she could and could not do, was to be rejected, this required at least express consideration and reasons. Mr. Aldridge submitted there had been no attempt by the primary judge to assess what was the extent of the appellant's depression, what was the extent (if any) of her malingering, or what was the extent of the pain she was actually suffering; and there was no basis in the evidence for a finding that the pain would improve with pain management. 36 Mr. Aldridge pointed to the evidence that the appellant was suffering a major depressive disorder, which was not substantially contradicted by the respondent's evidence. Although Dr. Large attributed depression to other causes, he did not deny that the accident was a substantial contributing factor, and that was sufficient. Mr. Aldridge also submitted that even if, as contended by Dr. Large and Dr. Roberts, all the requirements of post-traumatic stress disorder had not been met, three of the four requirements were met, so their evidence really went to a question of labelling rather than a denial of a serious disorder in the appellant. 37 Mr. Aldridge submitted that unless there were substantial discounts made by the primary judge for conscious exaggeration and/or for improvement of the appellant's symptoms by pain management, the assessment of 22% of a most extreme case was far too low; and for the reasons given above, it was inappropriate to make such discounts. Mr. Aldridge submitted that this Court should make a proper assessment; or if it felt unable to do so, refer the matter back for a new trial on damages. 38 Mr. Halligan for the respondent submitted that it was open to the primary judge to accept the opinion of Dr. Roberts and Dr. Large that the appellant had exaggerated her symptoms; and also to reach the view that with the conclusion of the litigation and with pain management, the appellant's pain would improve. On that basis, he submitted that the assessment of 22% of an extreme case was in fact too high. He submitted that if the Court considered that error had been made by the primary judge, the appropriate result was a new trial. 39 In my opinion, if it was open to the primary judge to accept the opinion of Dr. Roberts and Dr. Large that the appellant was exaggerating her symptoms, and to reach the view that with the conclusion of litigation and pain management her pain would improve, the assessment of the appellant's non-economic loss at 22% of a most extreme case is not shown to be outside the range open to the primary judge. I do not accept the respondent's submission that it is too high. 40 However, there is force in the appellant's submission that the primary judge did not address the extent of the appellant's depression, the extent of the appellant's exaggeration and the extent to which her pain was genuine; and also in the submission that she did not address the credibility of the appellant's sworn evidence. In my opinion, these were factual issues the resolution of which was significant to the assessment of the quantum of damages, so that, for the primary judge's reasons to be adequate, it was necessary that these reasons give a reasonable indication of how these issues were resolved and for what reason. Essentially the only indication given by the primary judge was to the effect that the evidence of Dr. Roberts was based on objective tests and was not challenged; but that did not amount to an assessment of the extent of the appellant's depression, the extent of her exaggeration or the extent to which her pain was genuine, nor did it adequately deal with the appellant's sworn evidence, particularly in circumstances where it was not put to her that she was consciously exaggerating her symptoms and her problems. 41 For those reasons, in my opinion the primary judge's reasons were inadequate. Although the result which she reached was a possible result on the evidence, this is certainly not a case where it was in substance the only result reasonably open. Nor in my opinion is it a case where this Court can reach its own conclusion: the assessment of damages in this case does depend heavily on the Court's assessment of the credibility of the appellant, which was not adequately assessed by the primary judge. 42 For those reasons, in my opinion there must be a new trial on damages.

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

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