Patient attacks night nurse

Keywords

Tort – Workplace injury – System of work – “Special” nurse allocated to dementia patient and other staff leave emergency department ward nurse by herself while patient is agitated – Nurse assaulted – Breach of Duty of Care – Damages

Facts

The plaintiff was working night shift as a nurse in the short stay section of the Emergency Department at Blacktown Hospital.  She began her shift at 9.30pm on 25 December 2017.

One of the patients that night was a Mr Santos.  Mr Santos was known to suffer from various mental health conditions. He also had a documented history of violence at the same hospital in 2014 and again in August 2017. Mr Santos presented to the hospital that night in an agitated state which, combined with his history, resulted in the medical staff assessing him as a high-risk patient. This necessitated the use for a “special” nurse to be deployed to provide one-to-one care for Mr Santos.

The “special” nurse arrived at 11pm but left shortly after one of the other nurses had gone for a meal break at around 11.45pm, leaving the plaintiff on her own.

Shortly after midnight, Mr Santos became increasingly agitated. The plaintiff, still on her own, attempted to contact other staff to assist, and made corresponding notes in the patient logbook. Mr Santos beckoned the plaintiff over to him and, when the plaintiff was about a metre away, grabbed her hair and repeatedly pounded her head against the wall and floor.  The plaintiff activated her duress alarm but continued to be subjected to the assault by Mr Santos for about 15 to 20 minutes. Eventually, it took five staff members around five minutes to remove Mr Santos from the plaintiff.  Mr Santos stated that he had been trying to kill the plaintiff.

In addition to the numerous physical injuries suffered by the plaintiff, she was assessed as suffering from chronic post-traumatic stress disorder and was likely never to return to work. The plaintiff’s claim for damages totalled $1,795,234.

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The defendant sought to challenge the plaintiff’s claim, identifying issues of admissibility of evidence, liability, and quantum.

Decision

1. Judgment for the plaintiff. Judge: Gibson DCJ, Decision delivered 22 March 2024
2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed sum for the damages awarded.
3. Defendant to pay the plaintiff’s costs.
4. Liberty to apply concerning orders 1 and 2 and any application under s 151M of the Act.
5. Exhibits retained until further order.

Ratio

The defendant submitted, among other things, that the expert report of a Ms Whitby (a certified ergonomist and registered nurse specialising in manual handling) should not be tendered.  Two reasons were submitted.

First, Ms Whitby’s expertise restricted her to injuries concerning bending and twisting.  This was rejected by her Honour on the basis that Ms Whitby’s expertise involved reviewing of systems in hospital staffing, monitoring, and training. The second reason for the defence’s submission was that Ms Whitby’s report contained errors of fact. Specifically, a contention that the assault could have been avoided if Mr Santos had been transferred to the mental health unit.  Her Honour acknowledged that little or no weight can be placed on Ms Whitby’s conclusions in this regard.

Her Honour then addressed the issue of liability. The defence’s submission was that the Mr Santos’s attack could not have been foreseeable in any way, with a further submission that the presence of a “special” nurse would not have made any difference. The defendant, it was submitted, had therefore not breached its duty of care owed to the plaintiff.  

Her Honour rejected the defence’s submissions and reiterated the well-established principles of Wyong Shire Council v Shirt¹ and March v E & M H Stramare Pty Ltd,² concerning breach of duty of care and determination of causation, respectively. Taking into account the plaintiff had been left on her own, the amount of time it took to respond to the plaintiff’s duress alarm, lack of security guards on site, as well as the fact that potential for injury on hospital staff by patients is widely known knowledge, her Honour found that the defendant failed the plaintiff at every turn.

The issue of quantum was also raised by the defendant who, notwithstanding multiple reports by relevant specialists providing consistent opinions as to the plaintiff’s conditions, submitted that the plaintiff was exaggerating the severity of her injuries.

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This submission was largely underpinned by evidence comprising of various social media posts in which the plaintiff, who was a member of the Sikh community, was seen smiling and dancing at social functions in traditional Sikh dress.

The plaintiff was challenged by the defence during cross-examination. The plaintiff’s evidence was that she was largely pressured and encouraged by family to attend the social functions and was dressed as per the traditional cultural practices. Her Honour found that the photographs and videos were, at best, “the flimsiest of evidence . . . when weighed against the opinions of all medical professionals consulted for reports in these proceedings . . .”³

Footnotes
¹ (1980) 146 CLR at 47.
² (1991) 171 CLR 506.
³ Chopra v NSW Health Service – South Western Sydney Local Health District [2024] NSWDC 76, at 115, Gibson DCJ.