Citation: Chopra v NSW Health Service - South Western Sydney Local Health District [2024] NSWDC 76
Court: District Court of New South Wales
Date: 22 March 2024
Judge: Gibson DCJ
Background
The plaintiff was an experienced registered nurse employed at Bankstown Hospital, operated by the South Western Sydney Local Health District. On the night of 25-26 December 2017, she was working a night shift in the short-stay section of the Emergency Department, which hospital policy required to be staffed by at least two nurses at all times.
One of the patients in the ward that night was a man with a documented history of alcohol-related cognitive decline, violence, and prior detention under the Mental Health Act 2007 (NSW). His presentations to Bankstown Hospital included involvement in a brawl in 2014, admissions in 2017 for agitated and violent behaviour, and an August 2017 incident in which he had attempted to strangle his wife, resulting in his detention. Given the seriousness of his condition on Christmas Day, the hospital arranged for a dedicated "special" nurse to be assigned to him on a one-to-one basis.
That special nurse did not arrive until 11 pm. Shortly after arriving, and at the same time as another nurse left for a meal break, the special nurse also departed, leaving the plaintiff alone in the ward. The patient, who had become increasingly agitated and refused to get into bed, beckoned the plaintiff over and then violently attacked her, repeatedly pounding her head into the wall and floor. The plaintiff pressed her duress alarm immediately, but assistance did not arrive for approximately five minutes, by which time she was unconscious. The patient later told staff he had been trying to kill her.
Legal Issues
- Whether certain documentary evidence (including payslips, hospital records, and a late medical report) was admissible
- Whether the defendant breached its duty of care to the plaintiff
- Whether any breach caused the plaintiff's injuries
- Whether the plaintiff contributed to her own injuries by her own negligence
- The correct calculation of pre-injury earnings, past economic loss, future economic loss, and associated superannuation
- Whether the plaintiff was entitled to Fox v Wood damages (compensation for the tax payable on workers compensation payments that are refunded to the employer from a damages award)
Decision
Gibson DCJ found that the defendant breached its duty of care to the plaintiff. The short-stay section of the Emergency Department was required by its own management policy to be staffed by two nurses at all times. The hospital was aware of the patient's serious and documented history of violent behaviour. Yet both the special nurse and the other ward nurse left the plaintiff alone with him at a point when he was visibly agitated. This failure in the system of work constituted a breach of the duty owed to the plaintiff.
The court accepted the plaintiff's evidence on all issues, finding her a clear, concise, and credible witness. Her Honour rejected an application by the defendant's counsel midway through cross-examination to adjourn the proceedings on the basis that the plaintiff was too distressed to give reliable evidence. The court observed that what had upset the plaintiff was a procedural application that had required her to leave the witness box, and she thereafter answered the questions put to her fully and appropriately.
On the question of contributory negligence, the court did not find that the plaintiff's actions contributed to the assault. The attack occurred in a matter of moments while she was attempting to document her concerns and call for assistance, precisely the kind of steps a prudent nurse would take in those circumstances.
On damages, the court accepted the plaintiff's formulations for both past and future economic loss and superannuation. The medical evidence uniformly supported the conclusion that the plaintiff would never be able to return to nursing or any other form of employment. Her Honour also noted the plaintiff's evident commitment to her career, including her plans to upgrade her qualifications, and accepted calculations that reflected those plans. Because there was anticipated disagreement between the parties about the precise arithmetic, the court entered judgment for the plaintiff but granted liberty to the parties to bring in agreed Short Minutes of Order setting out the final sum.
Orders Made
- Judgment for the plaintiff
- Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed sum for the damages awarded
- The defendant to pay the plaintiff's costs
- Liberty to apply in relation to the judgment, the damages sum, and any application under s 151M of the Workers Compensation Act 1987 (NSW)
- Exhibits retained until further order
Key Takeaways
- The District Court confirmed that a hospital employer can be found liable in negligence where a known system-of-work requirement (here, a minimum two-nurse staffing rule) is not enforced in circumstances involving a patient with a documented and serious history of violent behaviour.
- Where a patient's risk profile is well documented in hospital records, and the hospital has already taken the step of assigning special one-to-one supervision, the simultaneous departure of both the special nurse and the remaining ward nurse at a moment of observable patient agitation was found to constitute a failure of the employer's duty of care.
- Credibility findings played a significant role: the plaintiff's evidence was accepted in full, and her Honour's refusal to adjourn proceedings mid-cross-examination reflects the court's assessment that visible distress in a plaintiff who has suffered serious psychiatric injury does not, without more, render evidence unreliable.
- Under the legislative scheme governing work injury damages in NSW, the plaintiff's claim was confined to past and future economic loss and related heads of damage, with general damages not available.
- Medical evidence accepted without contradiction supported the finding that the plaintiff would never return to nursing or the workforce, and the court adopted damage calculations that accounted for the career trajectory she had intended before the assault.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 69, 135
- Mental Health Act 2007 (NSW), ss 19, 27(1)(b)
- Workers Compensation Act 1987 (NSW), ss 151E(1), 151F, 151M
- Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 318, 318I
Cases
- Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142
- Fox v Wood (1981) 148 CLR 438
- Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
- March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
- Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
- Jones v Dunkel (1959) 101 CLR 298
- Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
- Angel v Hawkesbury City Council [2008] NSWCA 130
- Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327
- Benecke v National Australia Bank (1993) 35 NSWLR 110
- Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
- Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79
- White v Logen Pty Ltd [2014] NSWCA 159
- Strasburger Enterprises Pty Ltd trading as Quix Foodstores v Serna [2008] NSWCA 354
- Hamilton v State of New South Wales [2013] NSWSC 1437
- Skinner v The State of New South Wales [2021] NSWDC 36
- Al Ammash v Australian Wide Transport and Logistics Pty Ltd [2018] NSWDC 505
- Jafari v Khoury and McDonalds Australia Ltd [2019] NSWDC 394
- Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348
- du Maurier v du Maurier [2021] NSWSC 83