John James Memorial Hospital Ltd v Keys

The trial judge's conclusions 8 The trial judge said he was "not persuaded that Sister Daniell went about her duties in any careless or cavalier way as the cross examination of her sought to establish". He said he was also unconvinced that Sister Daniell should have realised the plaintiff was so heavily affected by her medication that she needed constant supervision; or, indeed, "that she needed supervision to the extent that she should not have been left alone in the toilet". He said that, if supervision to that extent was needed, the plaintiff should never have been allowed out of bed and nobody had suggested the plaintiff's condition required her to be confined to bed. 9 The trial judge thought the evidence of Dr Goldrick to be "crucial". He explained: "He had arranged for the patient's admission to hospital as a matter of urgency, not because of any life-threatening condition, but because of extreme pain. The pain was so extreme that Dr Goldrick felt that the dosage of drugs needed to control it could be given safely only in a hospital environment. The continuing use of Pethidine, a narcotic pain-killer, was reduced and in effect substituted for an increase in the dosage of Tegretol administered in the 36 hours or so preceding the first fall. There was little evidence about the nature of Tegretol except that it is a drug used mainly for control of epilepsy, but also for neural pain. The increase in the dosage of Tegretol and its supplementation with Voltaren was successful in reducing the level of pain, but, to use Dr Goldrick's words, 'at the expense of some degree of sedation'. Dr Goldrick stated in his report of 4 June 1996 that he agreed with the plaintiff's solicitors that the plaintiff 'should not have been left on her own while under the influence of sedative medications'." 10 The trial judge quoted a comment in a later report of Dr Goldrick that the nursing staff should have better appreciated "that Lady Keys was in fact not only drowsy but mildly confused". The trial judge thought this comment reflected "some wisdom after the event;" Dr Goldrick had not noticed confusion during his frequent visits to the plaintiff. 11 After noting the medications administered to the plaintiff, the trial judge said: "29. The risk that the changeover from Pethidine to Tegretol might have an increased disorienting effect was known and, in my view, should have been passed on to those responsible for the immediate management of the plaintiff. It was not negligent of Sr Daniell to be ignorant of the risk that the plaintiff was so confused and disoriented that she needed especially close supervision. If properly appraised of the likelihood, I do not think that Sr Daniell would have left the plaintiff's bedroom without considering whether the urgency of the call to the next room outweighed the need to stay close to the plaintiff. If she had stayed, it is likely (not inevitable, but likely) that Sr Daniell would have heard the plaintiff moving around before she fell and would have made some inquiry as to what she was doing. Had that inquiry been made, it is likely that Sr Daniell would have attended to the plaintiff before she fell." 12 At a later stage of his reasons, the trial judge considered the consequences of these findings. He said: "35. Under Australian law a hospital is vicariously liable for the acts and omissions not only of its employed staff but also those doctors whose patients the hospital admits for care and treatment under the doctors, whether the doctors are paid by the hospital or not: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 at p559. In accordance with that principle of law the defendant in this case is responsible for the acts and omissions of Dr Goldrick, although counsel for the plaintiff was somewhat shy in pressing that submission. Nevertheless, it appears to me to be an inescapable conclusion on the evidence and on the probabilities that there was a failure somewhere in the chain of communication between Dr Goldrick, through to the hospital staff and eventually to Sr Daniell. Sr Daniell should have been made aware that the plaintiff was likely to be disoriented and confused from the effects of the drugs prescribed for her, to the extent that the plaintiff should not have been left alone in the bathroom for the time that Sr Daniell was absent from the bedroom because of the risk of falling whilst in her confused and disoriented state. 36. On that ground, and that ground alone, which I think is sufficiently covered by the particulars of negligence, there should be judgment for the plaintiff. I should add that I am not persuaded that the plaintiff should succeed on the ground that the defendant had failed to take reasonable steps to prevent the floor of the bathroom becoming wet and slippery. First, there is no evidence that it was particularly wet or slippery, or that any wet and slippery state was due to anything but the use of the bathroom for ordinary purposes by the plaintiff . Secondly, the fact that a paper bathmat was subsequently replaced by a cotton bathmat is quite unpersuasive." The trial judge noted that contributory negligence was pleaded but said "clearly, having regard to the confused and disoriented state of the plaintiff , it cannot succeed". 13 In dealing with damages, the trial judge said: "39. The plaintiff's case is that in the first fall she suffered the major injuries of which she complains, namely injury to her left wrist, fracture of the left thumb, fracture of the vertebra at L1 and exacerbation of a pre-existing degenerative back condition. In relation to the second injury, her claim is that it exacerbated the conditions for which the first fall is responsible. I have decided that the plaintiff has not proved lack of reasonable care on the occasion of the second fall. If the plaintiff did indeed suffer the major injuries in the first fall, then I do not think that the degree of exacerbation in the second fall is sufficiently substantial to break the chain of causation and to relieve the defendant of responsibility for the consequences of the first injury as reflected in the plaintiff's ongoing symptoms and condition." 14 After referring to matters of evidence, the trial judge held that the fracture at L1 and the thumb and wrist injuries all occurred in the first fall. Consequently, he took them into account in assessing damages, which he computed as follows: "Pain and suffering and loss of enjoyment of life $18,000 Interest thereon $500 Past domestic help - unpaid $10,000 Interest thereon $210 Past cleaning expenses - paid $500 Future domestic expenses - unpaid $25,000 Future cleaning expenses - paid $7,000 Past medical, hospital, etc. expenses $8,038 Total: $69,248" His Honour entered judgment for this sum and ordered that the defendant pay the plaintiff's costs.

Contentions on liability 15 Mr R E Williams, senior counsel for the appellant hospital, argued that the trial judge misdirected himself in relation to vicarious liability. In particular, he contended, it was erroneous for his Honour to say that, under Australian law, "a hospital isvicariously liable for the acts and omissions not only of its employed staff but also those doctors whose patients the hospital admits for care and treatment under the doctors, whether the doctors are paid by the hospital or not". Mr Williams said that the true position was that a hospital may be liable for the acts and omissions of a treating, non-employed doctor; whether or not it is liable depends on factors of the kind listed by Mason J (with whom Brennan and Deane JJ agreed) in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24. He notes these factors were applied to a hospital case by Samuels JA (with whom Meagher JA agreed) in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 590-603. Samuels JA concluded his discussion of the point by quoting with approval a comment by Houlden JA, of the Ontario Court of Appeal, in Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 at 581: "First, a general hospital may function as a place where medical care facilities are provided for the use of a physician and his patient. The patient comes to the hospital because his physician has decided that the hospital's facilities are needed for the proper care and treatment of the patient. This use of the hospital is made possible by an arrangement between the hospital and the physician by which the physician is granted hospital privileges. Where a hospital functions as merely the provider of medical care facilities, then as the trial Judge pointed out, a hospital is not responsible for the negligence of the physician. The present case does not, of course, come within this classification. Second, a general hospital may function as a place where a person in need of treatment goes to obtain treatment. Here the role of the hospital is that of an institution where medical treatment is made available to those who require it. The present case falls in this second classification. Tony Yepremian was brought to the Scarborough General Hospital because he was in need of treatment. Does a hospital in these circumstances have the duty to provide proper medical care to a patient? In my judgment, it does." 16 Mr Williams submits it is always a question of fact whether, in relation to a particular patient, a hospital falls within the first or second Yepremian category. That means it is necessary for a court to have evidence regarding such matters as the circumstances of the patient's admission to the hospital, the arrangements (if any) regarding control by the hospital of the doctor's work, matters of remuneration and the doctor's obligation to work. In the present case, he points out, the evidence is confined to the fact that the plaintiff was admitted to the hospital at the initiative of Dr Goldrick, a specialist physician selected by the plaintiff's general practitioner. There is no evidence that the hospital exercised any control over Dr Goldrick's work in the hospital or made any contribution to his remuneration. There is no evidence as to the nature of any continuing relationship between Dr Goldrick and the hospital, or any obligations that relationship may have placed upon him. 17 Mr Williams contends the trial judge's overstatement of the effect of Albrighton had a significant consequence. The trial judge imposed liability on the hospital on the ground, and only on the ground, "that the plaintiff should not have been left alone in the bathroom for the time that Sister Daniell was absent from the bedroom because of the risk of falling whilst in her confused and disoriented state". He thought the hospital was liable for this action by Sister Daniell, not because of any personal act or omission of Sister Daniell, but because "there was a failure somewhere in the chain of communication between Dr Goldrick, through to the hospital staff and eventually to Sr Daniell"; as a result Sister Daniell was not "made aware that the plaintiff was likely to be disoriented and confused from the effects of the drugs prescribed for her". Mr Williams observes his Honour was not able to identify the point at which communication failed. He says that, if the failure was that of Dr Goldrick, the hospital would be liable for the resultant damage only if it was vicariously liable for his acts and omissions. Before that could be said, the trial judge needed to consider the factors discussed in Ellis, which he did not. 18 Counsel for the respondent plaintiff, Mr C E O'Connor QC and Mr D T Kennedy, support the trial judge's reasoning and his Honour's use of Albrighton. But they say this was not fundamental to his conclusion; it was enough for him to find that the hospital owed the plaintiff a non-delegable duty of care to ensure she was provided with appropriate medical and nursing care. They say that, properly understood, para 35 of his Honour's reasons contain such a finding. 19 Mr O'Connor and Mr Kennedy alternatively submit that, if the trial judge did not so hold, on the evidence he should have done so. They refer to the Notice of Contention filed on behalf of their client. It contains the following two contentions: "(a) His Honour ought to have found that the defendant hospital owed the plaintiff a non-delegable duty of care to provide her with reasonable care for her medical needs including her nursing care. (b) That the defendant hospital either knew or ought to have known having regarding to the plaintiff's physical condition, medication and presentation that she ought not to have been left unattended in the bathroom where she fell on 23 April 1996." 20 The solicitors for the plaintiff also filed a Cross Appeal in which they challenged the trial judge's failure to find the hospital negligent in relation to the plaintiff's second fall. Counsel support this challenge but they agree the matter has little importance if, as they contend, his Honour was correct in ascribing the L1 damage to the first fall. That matter is contentious but, for reasons we will give, we have concluded his Honour's view is correct; accordingly, we need not consider the position in relation to the second fall.

Conclusions on liability 21 With respect, we think the trial judge overstated the effect of Albrighton. The true position is that suggested by Mr Williams, as summarised in paras 15 and 16 above. Before it was possible to hold the hospital liable for the effect of a failure at an unidentified point in the chain of communication between Dr Goldrick and Sister Daniell, it was necessary for the trial judge to be satisfied the hospital was liable for the acts and omissions of all participants in the chain. If he did not do this, the judge risked imposing liability on the hospital for the omission of a person for whom it was not vicariously responsible. And his Honour did not make the findings necessary to enable him to say each participant in the chain was a person for whose acts and omissions the hospital was responsible. Nor did the evidence establish that to be the position. The scanty information touching Dr Goldrick's position pointed the other way. It seems Dr Goldrick was selected by the plaintiff's general practitioner, acting on behalf of the plaintiff rather than the hospital. Dr Goldrick chose the hospital, not the reverse. The plaintiff was being treated as a private patient in a private hospital; Dr Goldrick was apparently remunerated by her or her insurer. 22 Although counsel for the respondent plaintiff argue otherwise, we do not think it is possible to construe paras 35 and 36 of the trial judge's reasons as basing the hospital's liability on a breach of a non-delegable duty of care that it owed to the plaintiff . As will appear, we think this is a proper basis for holding the hospital liable. But that is not the basis adopted by his Honour; if it was, it would have been unnecessary for him to refer to Albrighton or to hold the hospital liable for Dr Goldrick's acts and omissions. 23 We think the submissions put by Mr Williams in support of his client's appeal on the issue of liability should be adopted; nonetheless, effect should be given to the respondent plaintiff's Notice of Contention points, with the result that we should affirm the trial judge's determination that the plaintiff is entitled to succeed on the issue of liability in respect of the first fall. In order to explain our reasons regarding the Notice of Contention, it is necessary to refer to some additional evidence. 24 In a report dated 29 July 1996, Dr Goldrick referred to the use of Tegretol in this case. He said it did not have the potential to cause narcotic dependency "but certainly in large doses, can and in fact did, cause drowsiness and some degree of confusion". We understand the doctor to be speaking of the plaintiff's condition at the time of the two falls. 25 Dr Goldrick gave the following oral evidence: "I think you have also had an opportunity today to have a look through the notes that have just been tendered, that is the list of medications that were administered to Lady Keys during the course of her stay?---I have. And in relation to some of those medications, are they medications that could cause drowsiness in her?---They certainly were. And what about confusion, her mental thinking?---Very much so. And could they produce a state of disorientation in her?---They could. And were they - was she receiving heavy doses of the relevant medications?---She was. And which ones were the ones that were the ones likely to cause confusion?---Narcotics in the form of Pethidine and/or Panadeine Forte be introduced and following on from that, the large does of Tegretol. And what is the effect of the Tegretol?---Tegretol, as you know, is an anti-convulsant for people with epilepsy. It s also very useful in the treatment of neuritic pain and it was in this particular case it had to be used in heavy doses so we could get the dose of narcotics reduced in the course of which it made Lady Keys drowsy. She had been drowsy for some time. If a person with that level of medication and that type of medication was aware that there was a buzzing system that could be used, what effect might that medication have on her capacity to understand that or to utilise such equipment?---Well, she could forget it's there. And would her confusion and drowsiness and disorientation as a result of that medication be apparent to an experienced qualified nurse?---I think anyone would have realised that Lady Keys was very drowsy and a qualified nurse would have known if she had been, if she had been with Lady Keys during such an episode, that she was confused. Her answers would have been inappropriate." This evidence was not challenged in cross examination. 26 Professor Alan Pearson, Professor of Clinical Nursing at the University of Adelaide, gave evidence on behalf of the hospital. He agreed that the medications supplied to the plaintiff would have been likely to cause her to be drowsy. Asked about confusion, he said "Not necessarily", but added "It sometimes can, yes". He agreed it was not good practice to leave a confused or disoriented patient unattended in a shower room. 27 Sister Daniell acknowledged that she knew Tegretol can cause drowsiness and can "possibly lead to confusion". She said she was not aware of it causing disorientation. 28 The trial judge accepted that, on the occasion of the first fall, the plaintiff was confused. More than once, he referred to her "confused and disoriented state". This finding was open to him; moreover, on the evidence of Dr Goldrick, Professor Pearson and Sister Daniell herself, it was a condition foreseeable by any trained person who had knowledge of her medication regime. Sister Daniell had, or should have had, that knowledge. On Sister Daniell's own evidence, it was not necessary for her to be informed by a "chain of communication" stemming from Dr Goldrick that the plaintiff was likely to be affected by her medication to the point of experiencing drowsiness and, possibly, confusion. She already knew that. She also knew that, if she left the plaintiff's bedroom, she would not be able to hear the buzzer beside the toilet, if the plaintiff pressed it as a signal that she was finished on the toilet and wanted to be moved. She should have realised that, if she did not answer the buzzer, the plaintiff might move without assistance and suffer a fall. Under cross examination Sister Daniell gave this evidence: "And of course, if you had have been in the room and heard Lady Keys getting up from the toilet and perhaps going to shower, you would have immediately have gone in, would you not?---I would have, yes. Because you would have appreciated that a person who was taking that medication and had this problem with her sciatic pain and had a walking frame, could well have been at risk of falling over in the toilet, if left unattended?---Yes." The possibility that the plaintiff would get into difficulties in moving unassisted from the toilet would be exacerbated by drowsiness and any confusion from which she was suffering. 29 Having regard to the condition of the plaintiff , it was negligent of Sister Daniell to leave the bedroom, without warning the plaintiff or checking how she was getting on. It was foreseeable that, during Sister Daniell's absence from the bedroom, the plaintiff would wish to be moved from the toilet and, forgetting or unable to obtain assistance, undertake the risky step of moving without assistance. 30 Although this view of the case departs from that taken by the trial judge, there is no reason for us to decline to give effect to it. Our conclusion does not depend on disputed matters, in relation to which a trial judge might enjoy an advantage over an appeal court, but on evidence accepted or led by counsel for the hospital. Moreover, our conclusion falls within the particulars of negligence provided by the plaintiff's solicitors before the hearing. They included: "(f) Permitting the Plaintiff to be left alone while under the influence of sedative medication; … (j) Failure to ensure that the Plaintiff did not attempt to walk by herself without assistance."

The L1 injury 31 An issue argued in relation to damages is whether the plaintiff's L1 injury was sustained in the first fall or the second fall. It was not detected in x-ray until after the second fall but the trial judge held it was probably sustained in the first fall. 32 The plaintiff said in evidence that, after the first fall, "my back was very painful". When asked to demonstrate the painful area, she indicated an area that was agreed to be the bottom of the thoracic and start of the lumbar spine, extending for several inches on each side of the spine. This seems to include the L1 area. 33 The trial judge accepted the plaintiff's evidence on this matter. Despite the absence of a contemporaneous x-ray, we see no reason to take a different view. Damages ought to be assessed on the basis of the injuries found by his Honour.

The quantum of damages 34 The plaintiff's Cross-Appeal calls into question two items in the trial judge's assessment of damages: the amount ($18,000) allowed for pain and suffering and loss of enjoyment of life, and the allowance of $8,038 for past medical, hospital etc expenses. 35 In relation to the latter matter, the complaint is that his Honour allowed only $7,500 in respect of expenses to 11 May 1996 whereas actual expenditure came to $10,861.95. His Honour allowed the lesser amount because he was not satisfied that the whole of the larger sum constituted expenses over and above what the plaintiff would have paid if she had remained in hospital for observation and treatment of her pre-existing sciatica; there was no evidence as to the date she would have been discharged if she had not fallen. 36 What proportion of the total $10,861.95 should be allowed is a matter of judgment about which minds might differ. It was open to the trial judge to make the judgment that he did. We are not persuaded he was wrong. 37 This leaves the matter of general damages. 38 We have already referred to his Honour's assessment of the plaintiff's claim for general damages in paragraph 13 above. It is necessary to refer to his later observations and findings of fact. His Honour made findings about the plaintiff's recuperation as follows, "43. On 11 May the plaintiff underwent an operation in which Dr Morris transferred two tendons of the index finger to the site of the ruptured tendon of the left wrist. The plaintiff, who by this stage had had enough of hospital, had herself discharged the following day. The thumb remained in a cast until early June 1996 and she started physiotherapy for the thumb and hydrotherapy for her sciatica. The plaintiff's wrist and hand improved gradually and, when last seen for treatment by Dr Morris in November, she was still getting physiotherapy. Dr Morris saw the plaintiff once again on 20 July 1998 for the purpose of the case. Her symptoms, along the lines of those given by her in evidence, indicated discomfort with heavy lifting. Dr Morris thought that there was a full return of movement of both wrist and thumb. The plaintiff was also complaining of on-going low back pain at the L5/4 level, which Dr Morris thought was due to degeneration. He also thought that she had recovered "from the old wedge fracture at L1 which she had sustained several years earlier". I take it that he was referring to the fracture caused by the fall on 23 April 1996. 44. The plaintiff remained confined mostly to bed at home for some three or four weeks. When she was up and about she used a hired walking frame and a special toilet seat. She had assistance from her husband and other members of the family who came to stay for that purpose. 45. In June 1996 the plaintiff came under the care of Dr Veronica Goldrick, general practitioner, for a variety of symptoms and conditions, chiefly hypertension and stress which Dr Goldrick thought was secondary to her injuries. She was seen twice later by Dr Luba Eiken, a rehabilitation specialist at Pymble, on the referral of her solicitors. 46. By this time the plaintiff had discarded the use of the walking frame and her condition had improved but slightly as far as the aftermath of her injuries was concerned. She has remained much the same since. She has tried various tasks around the house and finds many of them difficult and some of them impossible. The problem is the left hand and wrist rather than the low back pain. However, her evidence is that she has back pain on bending and stooping which is worse in winter. She uses a hotpack on her back when sitting but did not do so before the injury. She goes to bed early because she is more comfortable lying down." 39 Having observed that the respondent was a very active person having regard to her years, his Honour said, "50. ...For the period between the injury and the present the usual principles apply to the assessment of general damages. However, for the future it must be observed that a person of the plaintiff's years who is likely to suffer from symptoms and incapacity for the rest of her life is not entitled to a sum as high as a younger person with an expected long life span of such symptoms and incapacity ahead of him or her. Further, it must be recognised that at the time of her injury the plaintiff was suffering from a variety of debilitating conditions, many of which accompany advancing years. The sciatica which put her in hospital was the probable result of a degenerative spinal condition. The injury to her lower back was undoubtedly severe in its immediate physical effect because it caused a compressive fracture. No doubt the degree of pain produced was also immediately severe. But on the evidence, the actual fracture has healed well and has caused no complications with regard to discs or spinal cord. I think that after about six months the immediate effect on the plaintiff's lower back was almost resolved. The ongoing effect is that the injury probably stirred up or exacerbated the degenerative condition, thereby hastening the development of symptoms or increasing the severity of symptoms already experienced or both. Against that, the award must take into account the contingency that even without the injury and having regard not only to the plaintiff's age but her propensity to falling, she was likely to develop symptoms and that those symptoms were likely to worsen anyway, even if she had never fallen at the hospital. 51. The injury to the wrist and thumb is in a different category and represents a substantial and continuing interference with the plaintiff's capacity to enjoy her remaining years. I do not think that the stress mentioned by Dr Veronica Goldrick is a clinically diagnosed medical condition, but no doubt it reflects the pain and suffering for which damages are to be awarded. For pain and suffering and loss of enjoyment of life I award $18,000, as to which I apportion $10,000 for the past for the purpose of the award of interest. I award interest at 2 percent per annum, which I calculate at $500." 40 It was submitted on behalf of the respondent that the nature and extent of the injuries sustained by the respondent and his Honour's findings of fact in relation to the facts of the accident upon her and her life warranted a higher award of general damages than $18,000. We think that there is considerable force in this submission. We propose to increase the award to $30,000 for general damages. That is a sufficiently significant increase to warrant this court's variation of the award, being about 8.5%. Consistent with the trial judge's assessment of the plaintiff, it is appropriate to apportion $20,000 for the past for the purpose of the award of interest. Interest at two per centum per annum on $20,000 from the date of accident to today is, in round figures, $1,200. 41 Accordingly, the appeal will be dismissed, the cross-appeal allowed, the judgment of the trial judge set aside and in substitution thereof, judgment entered for the respondent in the sum of $82,448 plus costs. We make orders accordingly. We further order that the appellant pay the respondent's costs of the appeal and cross-appeal. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Respondent: Mr C E O'Connor, QC with Mr D T Kennedy

Solicitor for the Respondent: Elrington Boardman Allport