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

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6025/01 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41043/03 DC 6025/01

BEAZLEY JA HODGSON JA BRYSON JA

Friday 17 December 2004 SIA V. THE FRANK WHIDDON MASONIC HOMES OF NSW Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: On 24 October 2003, pursuant to reasons for judgment given by Balla DCJ on 13 October 2003, judgment was entered for the appellant in the sum of $41,076.00 in proceedings in which she had sued the respondent, her employer, for negligence. The appellant appeals to this Court on the question of quantum of damages. 3 The respondent seeks leave to bring a cross-appeal out of time, challenging the primary judge's decision on both liability and quantum of damages.

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.

9-9-99 Our BBQ was today. Escorted David outside. Very unsettled. Declined to sit down. I kept trying to redirect him away from the BBQ but he kept refusing to move getting aggressive when trying to move him away as I didn't want him getting to (sic) close which he was as he could have got burnt. This pm spent a considerable amount of time with David, also he was hanging around with a visitor and resident when trying to redirect him away due to visitor's request he started to get quite aggressive running towards the visitor. Escorted him back inside but no longer had I did this he was back out near them. 10 On 15 September 1999, the appellant started work at 2pm. She was walking out of the treatment room carrying water and pills on a tray in her left hand when Mr. Smith grabbed her from behind. He grabbed her right arm with both hands, and pushed her arm back, and according to the appellant "tried to break it". He pushed her against the corner of the nurse's station. They struggled for quite some time, and she asked him to let her go. She tried to calm down because she was concerned that if she became aggressive he would hurt her more. Another nurse, Sister Standring, came to her assistance, and got Mr. Smith away from her. 11 The appellant did not feel anything immediately, and continued to work; but after 20 to 30 minutes she could not move her neck and was in pain. She was picked up by her husband and taken to her GP, Dr. Mohan. 12 Dr. Mohan gave her a certificate to be off work 2 to 3 days, and referred her to a massage therapist, and later to a physiotherapist. 13 On 25 October 1999, she saw an orthopaedic consultant Dr. Caspary, who sent her for a C/T scan. This showed a small posterior C5/6 disc lesion. 14 On 13 December 1999, Dr. Caspary reported to the workers' compensation insurer as follows: This patient was seen again on 13 December 1999.

There has been no change in the condition of her cervical spine.

She continues to have pain radiating into her right arm and also has pain in her upper thoracic spine.

She has also mentioned to me pain in her lower back and right leg but I am far from certain that this is related to the injury of 15 September 1999 as it seems to be somewhat more recent.

She continues with physiotherapy treatment at this stage.

She will return for review in 4 weeks. 15 Further orthopaedic evidence called on behalf of the appellant was summarised as follows by the primary judge: Dr Giblin, orthopaedic surgeon, saw the plaintiff on 17 February 2000. He recorded a complaint of neck pain and restriction of movement of the neck and shoulders. The doctor organised an MRI scan of the cervical spine which a radiologist considered was normal but which Dr Giblin thought showed subtle signs of change at 4/5 and a bit more at 5/6. He diagnosed a soft tissue injury to the neck with referred symptoms to the shoulder. He described the long term prognosis, in June 2000, as more reasonable. Dr Giblin does not refer to the back or right leg.

The two orthopaedic surgeons qualified for the plaintiff, Dr Memon and Dr Selby Brown diagnosed soft tissue injuries. Dr Selby Brown thought that the incident may have caused some damage at C5/6 but could not relate the remainder of her symptoms to any physical injury. Dr Memon was unclear as to the cause of symptoms in the leg. 16 Although in dealing with economic loss the primary judge said that the appellant returned to work in November 1999 on normal duties, it is clear that she did not in fact do so: it appears that the respondent tried to get her to return to work, offering her normal duties, but she did not in fact return to work. Her evidence was that there was ongoing pain in her back, neck, right shoulder and arm. 17 As recorded by the primary judge, her evidence at the hearing was as follows: The plaintiff feels that her condition has not improved - when the pain is bad she cannot put on clothes or get up while at other times she can do light chores. She does some cooking but it is painful. Most of the time her husband does the shopping. The relationship with her husband has been affected as she gets upset very easily and they fight a lot.

The plaintiff had difficulty in looking after her young son - she could not lift him to change his nappy and could not feed him. She has been helped by her sisters and parents and lives between the two houses. Her son is now in preschool and will be in kindergarten next year.

The plaintiff has unsuccessfully tried different medications, physiotherapy a TENS machine, heat, massage, head traction and hydrotherapy. 18 The respondent terminated the appellant's employment on 1 December 2000. She has not applied for paid work since then, and regards herself as totally unemployable. 19 The primary judge recorded the following contention on behalf of the appellant, and the following psychological and psychiatric evidence led on her behalf: Counsel for the plaintiff submitted that the plaintiff's ongoing complaints are primarily attributable to a psychological or psychiatric condition caused by the injury. The plaintiff saw a psychologist, Mr. Glancey, on a few occasions in 2000. He diagnosed a major depressive disorder.

The plaintiff consulted Dr. Subhas, psychiatrist, on 29 May 2001. He has reviewed the plaintiff on a few occasions primarily for supportive psychotherapy. He also diagnosed a major depression and possibly a posttraumatic stress disorder. He recommended an anti-depressant and subsequently recommended in-patient treatment as she was taking her frustration out on her husband and son. However, Dr. Subhas' opinion is founded on his acceptance of the plaintiff being unable to cope with the pain in her back, neck, right shoulder and arm.

Another psychiatrist, Dr. Robertson, reviewed the plaintiff on 27 July 2000, 25 March 2002 and 20 May 2003 at the request of her solicitor. He also diagnosed a major depression and a post traumatic stress disorder. He also took a history of relentless chronic pain. 20 The primary judge referred to the following medical evidence on behalf of the respondent: Dr. Fearnside, neurologist, examined the plaintiff at the request of the defendant. He did not consider that the radiological investigations showed any abnormality and described the plaintiff's complaint as sensory loss over the whole of the right side of her body as non-anatomical. Dr. Bornstein, orthopaedic surgeon, did not find any orthopaedic abnormality. …

Dr. Large, psychiatrist and Dr. Wendy Roberts, psychologist examined the plaintiff at the request of the defendant. They have advised that the plaintiff does not meet the criteria in DSM IV for a post traumatic stress disorder, as she did not fear for her life at the time of the accident. I accept this opinion.

Dr. Large did diagnose depression which he attributed to a variety of factors including the problems the plaintiff is experiencing with her family, marital problems, problems adjusting to the role of being a mother and the loss of her occupation and financial independence. He advised that the plaintiff's physical symptoms are not explained by depression. He diagnosed abnormal illness behaviour exacerbated by litigation and concluded that a substantial but undetermined proportion of her incapacity is a result of consciously motivated stimulated illness.

Dr. Wendy Roberts, psychologist, reviewed the plaintiff for the defendant. She carried out a detailed and lengthy interview including testing and found clear evidence of exaggeration across a range of areas including testing designed to detect malingering.

DECISION OF PRIMARY JUDGE 21 The primary judge gave the following reasons for finding that the respondent breached a duty of care to the appellant: The defendant had a system for managing residents displaying aggressive behaviour and the principal purpose for implementing that system was to prevent injury to other residents and staff. There was a breach of that system when the aggressive behaviour on 7 and 9 September was not reported. If the incidents had been reported, the defendant should have, in accordance with its system, taken steps to address the issue. The available steps would have included monitoring Mr Smith, transferring him to a secure environment such as Raines 1 or arranging a medical review. I am satisfied that if the defendant had implemented a safe system of work the risk of injury to the plaintiff would have been significantly reduced. 22 On damages, the primary judge made the following findings on the basis of orthopaedic evidence: I am not persuaded that the medical evidence establishes that the plaintiff has any significant objective abnormality in her upper body causing her complaints of pain. I find that she sustained strains to her neck and right shoulder, which are causing a low level of ongoing symptoms. On balance I do not consider that the medical evidence establishes any causal link between the injury and the plaintiff's condition in her low back and right leg. In particular there is no such evidence from the two treating doctors. Dr Memon's opinion is based on a history as to the onset of those symptoms which is not consistent with the contemporaneous record of Dr. Caspary.

Although she does not feel that her condition has improved at all, she was able to resume driving after a while. It is likely that her symptoms will improve with treatment such as pain management. 23 As regards the appellant's contentions concerning her psychological or psychiatric condition, the primary judge found as follows: The only thorough objective testing of the plaintiff's psychological complaints was that undertaken by Dr. Roberts. Those findings were not challenged. I accordingly accept that there is an element of conscious exaggeration of the plaintiff's condition. However, I am also satisfied that the plaintiff's soft tissue injuries have contributed to the depressive condition diagnosed by the doctors. I am satisfied that after treatment such as pain management that par (sic) of the condition related to her physical injuries will significantly improve or resolve. 24 On that basis, the primary judge assessed non-economic loss at 22% of a most extreme case. 25 This is above the threshold for the award of damages for non-economic loss, but below the threshold for the award of damages for economic loss. However, the primary judge did assess economic loss as follows. 26 The primary judge found that the plaintiff will be fit for sedentary or semi-sedentary work, after completing a pain management course and counselling. In relation to past economic loss, the primary judge allowed $61,834.00 (including $28,434.00 paid by the respondent up to July 2000), plus superannuation $2,672.00 and Fox v. Wood $5,686.00. She allowed $30,000.00 in respect of future economic loss; $16,380.00 for domestic assistance; $20,001.49 in respect of past out-of-pocket expenses; and $8,000.00 in respect of future out-of-pocket expenses.

GROUNDS OF APPEAL 27 The appellant relies on the following grounds of appeal: 1. The Trial Judge's findings on the extent of the appellant's injuries are unclear and not supported by sufficient reasons. 2. The Trial Judge's quantification of the appellant's non economic loss was manifestly inadequate. 3. The Trial Judge found that the appellant's soft tissue injuries contributed to her depressive disorder but her findings of non economic loss do not appear to reflect the fact that the appellant was therefore entitled to damages for both her physical and mental injuries. 4. The Trial Judge erred in finding that the appellant's condition would significantly improve or resolve in the future given that her condition had not improved despite extensive treatment. 5. The Trial Judge erred in finding there was evidence of "conscious exaggeration" in the appellant's condition when that was not put to her. 6. The Trial Judge's allowance for past and future economic loss was inadequate. 7. The Trial Judge erred in allowing domestic assistance for only 1½ years after the birth of the appellant's child. 28 The respondent seeks to rely on the following grounds in its proposed cross-appeal: 1. LIABILITY 1.1 The trial judge erred in [holding] that the Appellant's injury was the product of a breach of duty of care owed by the Respondent to the Appellant. 1.2 The trial judge erred in finding a causal connection between the absence of reporting earlier incidents of resident's (sic) behaviour and the Respondent's injury. 1.3 The trial judge erred in holding that the Respondent should have taken steps to transfer Mr Smith to a 'secure environment' or to arrange a 'medical review'.

2. QUANTUM 2.1 The trial judge's award in respect of domestic assistance was excessive and should have been wholly rejected. 2.2 The award for non-economic loss was excessive and in no case overcame the threshold created by Section 151G(4) of the Workers Compensation Act 1987. 2.3 The trial judge erred in awarding any damages tor economic loss pursuant to Section 151H of the Workers Compensation Act.

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.

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.

ORDERS 43 Before setting out the orders, I note that this is a case most suitable for mediation. Even if the appellant achieves no more favourable result in the further hearing, she then does not have to refund the workers' compensation payments she has already received and she could seek further workers' compensation payments. It is extremely desirable for the appellant's future that there be finality in this matter, and it seems to me to be in the interests of both parties that there be a resolution, preferably without a further hearing. It is for those reasons that I make the seventh of the orders set out below. 44 The orders I propose are: 1. Appeal allowed. 2. Respondent to pay appellant's costs of the appeal and to have a Suitors Fund certificate if otherwise eligible. 3. Time for cross-appeal extended, notice of cross-appeal to be filed within 14 days. 4. Cross-appeal dismissed with costs. 5. Verdict and order for costs below set aside, and in lieu thereof declaration that the respondent is liable to pay damages to the appellant in an amount to be assessed, and order that the respondent pay the appellant's costs of the proceedings to date. 6. Matter remitted to the District Court for a new trial on the question of damages. 7. If either party seeks an order under s.110K of the Supreme Court Act, it can apply by written submissions within 7 days, to which the other side can respond by written submissions within a further 7 days. 45 BRYSON JA: In my opinion these proceedings are suitable for mediation before a new trial on damages takes place. In their own interest both parties should consider whether they should go to mediation. This is not a case where the Court should of its own motion order compulsory mediation without considering the parties' submissions. I agree with Hodgson JA. **********

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