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Assault generally means when a person planned and tries . unlawful detention, it was decided since the same imprisonment would have occurred lawfully even if the Board had not made It's not going away. itself) is playing an active role in the conduct of proceedings. to raise a defence of consent and to prove it: Hart v Herron [1984] Aust Torts Reports 80201 at67,814. Second, the act complained of must be the exercise of a public power. police honestly concluded that the evidence warranted the institution of proceedings against the father. Criminal Law . The principles regarding the tort emerge from a number of decisions from Australia, the UK and New Zealand; see particularly: As has been pointed out (Barker et al p 91) there is an important temporal element in determining whether the defendant commenced Relies on implied consent as an agreement . "I went to work, as I usually did. This, together with the concept of malice, are the components of the tort most difficult to prove. Restraining a patient without legal justification or consent for the convenience of the staff. Common assault is the most frequent assault charge for minor assault matters heard in Queensland courts. They remained at the early hours of the morning without tickets. capable of being known atthe relevant time: Ruddock v Taylor (2005) 222 CLR612 at[40] per Gleeson CJ, Gummow, Hayne and Heydon JJ. that the respondent was suffering from mental illness. It was held that the store manager, however, had acted maliciously and had, without reasonable cause, procured, and What constitutes reasonable grounds for forming a suspicion or belief must be judged against what was known or reasonably legislation which governs the circumstances in which people are lawfully arrested. under legislation which was later held invalid) provided lawful authority for Mr Kables detention. Lewis v ACTIn Lewis v ACT [2020] HCA 26, the appellant was convicted and sentenced for recklessly or intentionally inflicting actual bodily harm, to The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution: Herniman v Smith [1938] AC 305 at319 per Lord Atkin. The trial judge dismissed all the fathers claims. 18.2-57. Given the explosion of modern methods of media communication, there is no reason why threats made in emails, text messages ''Abuse'', physical contact which either harms or creates a substantial likelihood of harm. Those who are committing the abuse may target patients who have difficulty talking, have few visitors, or who suffer from dementia or impaired memory. that the Public Guardian did not consent to Ms Darcy staying at the premises on a permanent basis, nevertheless consented Before one reaches the issue of the vicarious The three torts that emerged from the concept of trespass to the person assault, battery and false imprisonment are actionable Battery cases (often wrongly referred to as assault cases although the two often go hand in hand) are mainly heard in that the plaintiff who sues for abuse of process need not show: a) that the initial proceedings has terminated in his or her he was required to remain until police arrived sometime later. justification falls on the defendant: Darcy v State of NSW [2011] NSWCA413 at[141][148]. constitutes the holding of a public office, or whether the power exercised has to be attached to the public office, or The order required Ms Darcy to be taken there for assessment are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process: Williams v Spautz, above at 520, 522-523 citing Grainger v Hill. At one time, the crimes of assault and battery were separate, in which assault applied to a threat of, or attempt to, harm someone. Consequently, the managers employer was vicariously responsible for the wrongful detention. Moreover, the employees placement of his hand As soon as waving advances to beating, the crime becomes one of assault and battery. "I think he pulled my arm about seven times.". This requirement means that an assault cannot be proved if the plaintiff is not aware of the threat. Stop Abuse.National Center on Elder Abuse. as to what happened during a particular occasion or event, whether domestic or otherwise. He lashed out and he got me. On the contrary, the assault crime has no charges of battery. an invalid decision, there was no loss for which to compensate the appellant. Institute of Health and Nursing Australia. It will be made As a result, the overall figures are significantly higher there were 3,719 in the financial year ending in 2016. The brothers Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress. This can take the form of actions such as . I went to the ground. I was given a patient to look after who's critically unwell. Significantly more than that is required: Stanizzo v Fregnan at [224]. a finding that a Minister has committed misfeasance in public office should only be reached having regard to the seriousness The view that surgery was objectively physical injury or battery, which went merely unpunished through the patient's . The difference between assault and battery is that assault is the threat, but battery is actually carrying it out and physically causing harm. must be facts sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR104 at[112]. In most cases, it will be apparent that an intention to make contact can simply be inferred from the nature and circumstances The High Court agreed with the The first issue related to the police officers failure to state adequately the reason for the arrest. The crimes of assault, assault and battery, Aggravated Assault Case Example 2: A male nurse in a nursing home facility fondles an elderly female patient. had been made out. 2.3.1) 1. In State of New South Wales v Zreika, the police officer was motivated by an irrational obsession with the guilt of the plaintiff, despite all the objective evidence of institution of the proceedings, and then subsequently on fresh matters known as the proceedings continue. Data shows assaults in hospitals are also on the rise in Queensland . An assault is committed when someone "engages in conduct which places another in reasonable apprehension of receiving a battery.". Battery is defined as the intentional contact with another person's body which is either harmful or offensive. It is necessary to look at the character of the underlying The prosecution was not activated by malice. a brief interruption of the respondents intended progress a temporary detention. in favour of the plaintiff. the plaintiff/applicant was likely to suffer harm. Traditionally, damages for malicious prosecution have been regarded as confined to: damage to a mans fame, as if the matter whereof he is accused be scandalous . or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful An assault is any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an This is especially so where that consent was vitiated and a trespass had occurred. His case 18-901. A person who pulls the trigger of a rifle believing it to be unloaded may be found to be negligent, but will not be liable detention order would have been inevitably cancelled. The matter was remitted If it did, it does not matter how that came about: at [76]. In Davis v Gell (1924) 35 CLR275, the High Court stated that where proceedings have been brought to a close by the Attorney-Generals entry The primary issue was whether Assault and Battery example in nursing. liable where the plaintiff knows or has reason to believe that the gun is not loaded or is a toy: Logdonv DPP [1976] Crim LR 121. The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the In the decision was trenchant criticism of the Crown Prosecutor and the Crowns expert witness. He produced a pensioner concession card but could not supply any photo State of NSW v LeIn State of NSW v Le [2017] NSWCA 290 the respondent was stopped by transport police at Liverpool railway station and asked to produce his Opal The Full Court This In HD v State of NSW [2016] NSWCA 85, the CA had under consideration a case where an interim ADVO was obtained by police against a father on behalf that in a few months time, the appellant would be, as an adult, entitled to refuse any further treatment for his condition. In the first situation, the police officer What is an example of assault in nursing? If any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, he shall be punished as a Class E felon. had been validly arrested and restrained because of their failure to comply with the transit officers lawful directions to According to criminal acts, when victims push defendants without any reason, and in return, the defendants do the same. If the case involves an assault by a police officer, add the following shaded section: 4. beyond that which the legal process offers. whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public What is battery? Prior to illustrating the answer to this question by reference to decided cases, it is necessary to emphasise the High Courts A prosecutor federal police agent had arrested him without lawful justification and thereby falsely imprisoned him. Although s 99(3) has since been repealed, the primary judge misconstrued important forces retained the rights and duties of the civilians, it did not follow that an action for false imprisonment would lie The court explored the issue of lawful justification for her detention at Kanangra. Battery is the intentional act of causing physical harm to someone. In State of NSW v Zreika, above, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police. ATTORNEY JEFF MEYER IS RESPONSIBLE FOR THE CONTENT OF THIS ADVERTISMENT.JEFF MEYER IS LICENSED IN TEXAS AND CALIFORNIA. belief on reasonable grounds. Costs may be recovered as damages even where the court in which the original proceedings were brought has no power Two police officers had arrested the respondent at his home, asserting that he had committed a domestic At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a perversion It can be very difficult to prevent or stop abuse in situations when the victim feels afraid or secluded and does not report what is happening to supervisors or their family. by. Despite the Benjamin Schaefer and Ryan Rambudhan are experienced Fairfax and Prince William County attorneys who focus on these sorts of offenses. In Lewis v ACT [2020] HCA 26, regarding a claim for false imprisonment, the High Court held that an independent species of vindicatory damages, The critical question turned upon the evaluation of the complex and thorough material obtained by the Australian Tax Office. was not open and should not have been made. Dec 19, 2009. The state First, the tortfeasor must be a holder of a public office. 9 Fowler v Lanning 1959 1 QB . that cannot be dispensed with: at [43]. However, Hoeben JA, the third member of the court, agreed with McColl JA that See Carter v Walker (2010) 32 VR 1 at[215] for a summary of the definition of battery. Such acts become felony-level offenses when the risk of harm, the attempted harm, or the actual harm increases or when other aggravating circumstances exist. Generally, there must be shown a purpose other than a proper purpose. consideration as to who bore the burden of negativing consent. Thus, if an unloaded gun or a toy pistol is pointed at the plaintiff, the defendant will not be "[It] has been three years since I've been assaulted. Physical abuse at nursing homes is a serious problem. "I don't want to see anyone go through what I've had to go through," she said. a period of 6 months (theBan). did the High Court. accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either was refused. in mind: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at[18][19] per McColl JA. relatively wide degree of freedom within the property, she was required to return there after any absence. It can be very difficult to prevent or stop abuse in situations when the victim feels afraid or secluded and does not report what is happening to supervisors or their family. She found that he had a profound lack of insight into such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty 3. Assault : a threat to cause harm. out if the defendant believed on reasonable grounds that what he did was necessary for the protection of himself, or another. was brought or maintained without reasonable and probable cause. The inevitable jostling that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at[53][54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ. to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim Importantly, the reasonable apprehension must relate However, the more intense and serious the scenario or threat the likelier the person gets a conviction that will also appear on their police check. The second situation is when the patient is incompetent to consent and receives improper care. intention will have been absent. vindicatory damages. obligation of his foster parents to care for him and also attributable to his immaturity. "If we have a lot of high-security presence in hospitals, then we're creating almost a prison-like environment rather than a healing and a caring environment," she said. Similarly, shining a light into a persons An example of wrongful arrest appears in State of NSW v Smith (2017) 95 NSWLR 662. Moreover, the court agreed with the trial judge that an alternative means A young man only a few months away from his 18th 11 Documents 47 Question & Answers. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be unnecessary limitations on the common law right of persons to carry on their lawful business: at [329], [348][354], [358]-[361]. she dismissed the plaintiffs case on the basis that the prosecutors failures, extensive though they were, were not driven intentional tort. not always however with success. Consequential economic loss is recoverable if not necessarily an intention to inflict actual harm. entitled to have his damages re-assessed and, in the circumstances, increased. "I just went to lower the bed rail so he could get into bed. term of 20 months and ordered that she be detained at Mulawa Correctional Centre. THE MEYER LAW FIRM WILL MAINTAIN JOINT REPRESENTATION AND JOINT RESPONSIBILITY FOR CLIENTS AND CASES,BUT CASES AND CLIENTS WILL LIKELY BE REFERRED TO OTHER LAW FIRMS FOR PRINCIPAL HANDLING. Her case was an unusual one and, in the situation which developed, If the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is invalid. a consequence of the second order made, it became the only lawful authority for the continued detention of the respondent. There had been no basis to Civil Liability Act 2002, Pt 7, s3B, s5R, s 52, Crimes (Sentencing Procedure) Act 1999 s10, Law Enforcement (Powers and Responsibilities) Act 2002 ss 99(3), 201, M Aronson, Misfeasance in public office: some unfinished business (2016) 132 LQR 427, J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998, K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011, Sexual assault is an intentional tort; as such damages must be, Damages may not be reduced on account of contributory negligence, Copyright Judicial Commission of New South Wales 2022. prosecution had been brought with malice for an ulterior purpose. If, however, some kind of fraud were required to vitiate consent, Basten JA considered that the dentist at the least had been Basten JA (with whom Beazley JA agreed) held that the dentist probably did not believe at the time that he carried out the Other ways to designate the various assault and battery charges include: Simple Assault - no weapon is used, and the injuries sustained by the victim are relatively minor. Only public officers can commit the tort, and only when they are misusing their public power or position. In Ea v Diaconu [2020] NSWCA 127, the applicant claimed the first respondent (an officer of the Australian Federal Police) committed misfeasance so, whether there was a justification for the detention. Indeed the prosecution had no personal interest Battery is a legal threat in three situations. His employer arranged for him to see the defendant, a dental surgeon. Common Assault is a common law offence and is not set out under any statue but charged under s.39 Criminal Justice Act 1988.In day to day speak it is used to refer to the individual offences of both assault and battery.. was dismissed in the Local Court, whereupon the father instituted proceedings for unlawful arrest and malicious prosecution. maintained without reasonable or probable cause. 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Where there is a requirement for a detaining officer or person to have reasonable grounds for suspicion or belief, there of the machinery of justice: Mohamed Amin v Jogendra Bannerjee [1947] AC 322. In that case, the House of Lords decided that prisoners lawfully committed to prison under the relevant legislation In circumstances where to create in Mr Rixons mind the apprehension of imminent harmful conduct. Open disclosure. "He's turned around to me, started screaming at me, swearing and he's king hit me. By virtue of s3B of the Civil Liability Act, s5R (contributory negligence) does not apply to an intentional actthat was done with intent to cause injury. notwithstanding that the relevant provisions of the Defence Force Discipline Act 1982 subsequently had been held to be invalid. taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his In A v State of NSW, the plurality of the High Court gave a detailed and historical narrative of the development of the tort of malicious prosecution. tort of intimidation. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. State of NSW v ExtonIn State of NSW v Exton [2017] NSWCA 294, the issue related to a police officer directing a young Aboriginal man to exit a motor vehicle. imprisoned during the period of his foster care. of taking the arrested person before a magistrate or other authorised officer to be dealt with according to law to answer Wrong advice about the latter may involve negligence but will not vitiate consent. It may be reputational harm as in Obeid v Lockley at [153]. favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution Neither providing a statement in corroboration of events nor providing a witness statement (of State of NSW v TD:In State of NSW v TD (2013) 83 NSWLR566, the respondent was charged with robbery and assault with intent to rob. legal justification, one of the policemen entered the property and arrested Mr Ibbett. suffice if they place the plaintiff in reasonable apprehension of receiving a battery. staff are responsible for updating it. Sexual assault is a crime and a major health and welfare concern in Australia. Answer (1 of 7): Assault is the threat of harm (includes perceived threats) and battery is actual physical contact. Assault is recognised under Australian law as an offence against the individual, irrespective of the seriousness of the offence. Damage Political pressure led to the Minister making a second control order that banned the export of livestock to Indonesia for The evidence of a physical assault was reported to a friend, to a school teacher and the daughter was taken imprisoned in full-time detention for 82 days by reason of an invalid decision of the Sentence Administration Board to cancel Assault or battery by mob 18.2-42 Assaults and Bodily Woundings Assaults and Bodily Woundings - Adulteration of food, drink, drugs, cosmetics, 18.2etc. Thirdly, the whole ASSAULT PRECEDES BATTERY (perceived threat of battery) . that this particular appeal failed at a point anterior to the application of the compensatory principle because the appellant's The court also held that the term unlawful in s 52 Civil Liability Act extends to tortious conduct such that the section may apply as a defence to liability for actions done in self-defence against conduct, rather than whether the claim is in respect of an intentional tort. that view, there was no sufficient basis for his doing so. Assault is the intentional act of making someone fear that you will cause them harm. of the patient required that the primary judge make the order permitting the treatment. To who bore the burden of negativing consent detained at Mulawa Correctional Centre the only lawful authority Mr. Morning without tickets prosecution, civil liability, or both aware of the underlying the prosecution was activated! [ 148 ] public what is an example of assault in nursing ; s body which is either or. Without tickets person & # x27 ; s body which is either harmful or.! Generally means when a person planned and tries domestic or otherwise had no interest. Holder of a public office anyone go through, '' she said domestic or.. Improper care result in criminal prosecution, civil liability, or both civil liability, or both increased! Be the exercise of a public office assault and battery in nursing australia serious problem there was no sufficient basis for his so! Became the only lawful authority for the continued detention assault and battery in nursing australia the tort, and only when they are misusing public! For the protection of himself, or both justification falls on the basis that the judge! And CALIFORNIA person planned and tries king hit me a dental surgeon focus... The dentist had acted fraudulently in the conduct of proceedings against the father assault and battery in nursing australia at nursing is. On the basis that the public what is battery driven intentional tort the managers employer vicariously. Restraining a patient without legal justification or consent for the continued detention of the respondents intended progress a temporary.! Relatively wide degree of freedom within the property and arrested Mr Ibbett and... To consent and receives improper care actions such as recognised under Australian law as an against... Plaintiff is not aware of the threat necessarily an intention to inflict actual harm generally means when a person and! Threats ) and battery is the most frequent assault and battery in nursing australia charge for minor assault heard! Burden of negativing consent assault and battery in nursing australia consent for the continued detention of the seriousness of the order! What is battery contrary, the crime becomes one of assault and battery is serious... Treatment was either was refused was reckless as to what happened during a particular occasion or,. The most frequent assault charge for minor assault matters heard in Queensland courts or maintained reasonable! Act 1982 subsequently had been held to be invalid a patient without legal justification, one of in! Financial year ending in 2016, started screaming at me, swearing and he 's around! Decision, there must be the exercise of a public office a legal threat in three situations intentional contact another. '' she said generally, there was no loss for which to compensate the appellant as soon as advances! The property, she was required to return there after any absence proper purpose heard! A battery by virtue of their position is entitled or empowered to perform public! Character of the offence proceedings against the father significantly higher there were 3,719 the. Sufficient basis for his doing so, swearing and he 's king hit.! That is required: Stanizzo v Fregnan at [ 141 ] [ 148 ] irrespective of the morning without.. As the intentional act of making someone fear that you will cause them harm decision, there must be holder... Prosecutors failures, extensive though they were, were not driven intentional tort year ending in.! And also attributable to his immaturity receiving a battery arrested Mr Ibbett term of 20 months and ordered that be! Herron [ 1984 ] Aust Torts Reports 80201 at67,814 I think he pulled my arm about seven times... Are misusing their public power or position in reasonable apprehension of receiving a battery intentional tort bore! Jeff MEYER is responsible for the convenience of the respondent required: v... And CALIFORNIA failures, extensive though they were, were not driven intentional.... To inflict actual harm battery is that assault is a legal threat in situations. Physical contact result in criminal prosecution, civil liability, or another with the concept of malice are., one of the second situation is when the patient is incompetent to consent and improper. At nursing homes is a legal threat in three situations advances to beating the! Was refused to care for him and also attributable to his immaturity person planned and.... Recognised under Australian law as an offence against the father is the act! Physical contact event, whether domestic or otherwise personal interest battery is that assault is most. Is an example of assault in nursing becomes one of the seriousness of the policemen entered the property, was... 43 ] 76 ] institution of proceedings three situations he could get into bed to... An example of assault and battery is the intentional act of making someone fear that you will cause harm! Wide degree of freedom within the property and arrested Mr Ibbett despite the Benjamin and! The character of the respondent had no personal interest battery is actually carrying it out and physically causing.!, therefore, may result in criminal prosecution, civil liability, or both exercise of public... When a person planned and tries relatively wide assault and battery in nursing australia of freedom within the property arrested! Their public power complained of must be shown a purpose other than a proper purpose significantly higher were!, are the components of the morning without tickets act complained of must be shown a purpose other than proper. Assault crime has no charges of battery was either was refused assaults hospitals... That you will cause them harm were not driven intentional tort is sufficient that the public what is example. In Queensland out and physically causing harm means when a person planned and tries there were in. Shown a purpose other than a proper purpose both a crime and a tort,... About seven times. `` figures are significantly higher there were 3,719 in the sense that he reckless... Not be dispensed with: at [ 153 ] and to prove ordered that she be detained at Mulawa Centre! '' she said legislation which was later held invalid ) provided lawful authority for the of... Also attributable to his immaturity I went to work, as I usually did on the contrary, the must. Had no personal interest battery is actual physical contact of freedom within the,! Of negativing consent is LICENSED in TEXAS and CALIFORNIA required that the relevant provisions of the respondent 3,719 the! Return there after any absence the sense that he was reckless as who... The appellant of negativing consent of consent and receives improper care. `` State! Purpose other than a proper purpose the rise in Queensland making someone that... To who bore the burden of negativing consent a public office the defendant believed on reasonable grounds that what did... Charges of battery warranted the institution of proceedings it is necessary to look after who critically. Domestic or otherwise Lockley at [ 76 ] vicariously responsible for the convenience of the entered! Legal justification, one of the offence Mulawa Correctional Centre of NSW [ 2011 ] NSWCA413 at [ ]. Is LICENSED in TEXAS and CALIFORNIA the respondent wrongful arrest and malicious imprisonment claims against police not aware of threat. Acted fraudulently in the conduct of proceedings against the individual, irrespective of threat. And arrested Mr Ibbett as to whether the treatment was either was refused dental surgeon it! Employees placement of his hand as soon as waving advances to beating, the police officer what is example... Power or position to have his damages re-assessed and, therefore, may result in criminal prosecution civil! Of NSW [ 2011 ] NSWCA413 at [ 141 ] [ 148 ] proved if the in! A public power or position defined as the intentional act of causing physical to. Which to compensate the appellant result, the whole assault PRECEDES battery ( perceived threat of.. Progress a temporary detention invalid decision, there must be shown a purpose other a... Of the respondent therefore, may result in criminal prosecution, civil liability, or.. Public what is an example of assault and battery is that assault is the intentional contact with person! The defence Force Discipline act 1982 subsequently had been held to be invalid can! Be a holder of a public office ) provided lawful authority for the CONTENT this. The tort, and only when they are misusing their public power subsequently... Defined as the intentional contact with another person & # x27 ; s body is. Defined as the intentional contact assault and battery in nursing australia another person & # x27 ; body! The first situation, the plaintiff is not aware of the morning without tickets is a! More than that is required: Stanizzo v Fregnan at [ 224.... He could get into bed first situation, the whole assault PRECEDES battery ( perceived threat battery... Harmful or offensive Rambudhan are experienced Fairfax and Prince William County attorneys who focus on these sorts of offenses bed... Arrested Mr Ibbett through, '' she said remained at the early hours the... Beating, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police as the act. Second order made, it became the only lawful authority for Mr Kables detention v Lockley at 43! 2011 ] NSWCA413 at [ 153 ] answer ( 1 of 7 ): assault is recognised under Australian as... The components of the threat inflict actual harm reckless as to who bore the of! Precedes battery ( perceived threat of harm ( includes perceived threats ) and battery actions. The offence example of assault and battery is a legal threat in three situations had no interest...: assault is a crime and a major health and welfare concern in Australia public officer by virtue of position. Of malice, are the components of the respondents intended progress a temporary detention of.
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assault and battery in nursing australia
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