Munday v St Vincent's Hospital Ltd [2020] VCC 1314

4 The defendant denies it was negligent or breached the Regulations. It defended the claim on the basis that Mrs Munday was well experienced in transferring patients and, on her own evidence, had been trained and was experienced in the use of slide boards and the need for two nurses to perform a patient transfer. Further, it alleged that as part of its annual "Move Smart" training program, Mrs Munday was aware of the need to ask for assistance if unfamiliar with the use of a lifting device. However, even if it had been negligent, the defendant denied that any such negligence was a cause of Mrs Munday's thumb injury, and further alleged that Mrs Munday was contributorily negligent. The defendant also denied that the Regulations applied to the task Mrs Munday was performing at the time of the injury.

5 Mrs Munday was called to give evidence and was cross-examined. Mrs Munday's husband and daughter gave evidence, as well as several doctors. The defendant did not call any witnesses. As a matter of convenience and to limit the length of this virtual hearing, numerous medical reports were tendered, as well as a forensic accountant's report. The parties also tendered other documents relevant to the claim, including the incident report and medical records of the elderly patient. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.

6 For the reasons that follow, I am satisfied that the defendant was negligent for not giving clear instructions to Mrs Munday, that two nurses were required when this particular patient was being transferred on this day, and that it was also negligent for not training Mrs Munday in the use of this particular type of board. However, Mrs Munday has failed to satisfy me that such negligence was a cause of her injury, which occurred when the patient moved without warning. Further, I am not satisfied that the Regulations apply to the task that Mrs Munday was performing when she suffered her injury. Therefore, I must dismiss her claim.

Mrs Munday's claim in negligence and breach of statutory duty

7 Mrs Munday issued these proceedings in July 2018, at which time, she alleged that the defendant was negligent as a consequence of the slide board incident, as well as the second and third incidents. Mrs Munday also alleged that the defendant had been negligent when it required her, over the course of her employment from 2005 to 2012, to perform heavy and awkward work involving repetitively pushing, pulling and lifting patients, and other strenuous tasks.

8 The particulars of negligence relied upon included:

(i) failing to instruct or properly instruct the plaintiff;

(ii) failing to provide a safe system of lifting and moving patients;

(iii) failing to instruct or train, or adequately instruct or train, its staff in the safe method of lifting and moving patients.

9 Mrs Munday claimed that as a consequence of the defendant's negligence, she suffered the following injuries:

(a) Production, aggravation or acceleration of injury to the right thumb including strain to the ulnar collateral ligament;

(b) Secondary injury to the right wrist, arm and shoulder, including radial nerve irritability in the forearm;

(d) Psychiatric condition including Major Depressive Disorder;

10 In January 2020, Mrs Munday amended her Statement of Claim to abandon her negligence allegations in respect of the second and third incidents, as well as her allegations regarding the nature of her duties throughout the course of her employment. Instead, Mrs Munday relied only upon the defendant being negligent for the slide board incident.

11 At that time, the pleading in respect of the slide board incident was also amended to allege that on 11 September 2011, Mrs Munday -

"... was caring for one of the Defendant's patients who needed assistance to, amongst other things, move in and out of bed. The Plaintiff was injured providing such assistance after she placed a board under the patient's buttock and the patient, without warning, put her weight on the board before the Plaintiff had let it go."

12 Mrs Munday also added a further particular of negligence specific to the slide board incident:

− Directing the plaintiff to undertake the task as a one-person task.

13 Further, in this Amended Statement of Claim, Mrs Munday added allegations in respect of the defendant breaching the duties it owed under Regulation 3.1 of the Regulations and alleged that the defendant had:

(i) failed to carry out a hazard identification in respect to hazardous manual handling, as required under Regulation 3.1.1;

(ii) failed to put control measures to eliminate the risk of a musculoskeletal injury from hazardous manual handling, as required under Regulation 3.1.2;

(iii) failed to carry out a review of any control measures in place, as required under Regulation 3.1.3.

14 Mrs Munday claims damages for her right thumb injury, which she claimed involved an injury to the ulnar ligament. Mrs Munday claimed that this injury had developed into a Chronic Pain Syndrome in her right hand which restricted the use of it. Mrs Munday has received extensive hand therapy in relation to this injury and takes pain medication for it. Mrs Munday said this injury significantly restricts the use of her right hand on a daily basis.

15 In addition, Mrs Munday claimed that she had developed a psychiatric injury as a consequence of the slide board incident. She stated that after the second incident, she felt useless and helpless. Thereafter, Mrs Munday said she felt distressed by the lack of progress with her thumb injury, her ongoing restrictions at work, and inability to properly care for her patients. Mrs Munday claims that when she witnessed the third incident, her psychiatric condition further declined, and she ceased work soon thereafter. Mrs Munday experienced hallucinations which were in part focused on the patients involved in the second and third incidents. Mrs Munday has received ongoing psychological and psychiatric treatment and takes medication for her psychiatric condition.

16 Mrs Munday has not worked since February 2012 and seeks damages for total loss of earnings from that date to present. Mrs Munday also claims for future loss of earning capacity on the basis that there is only a limited prospect of her returning to paid employment.

17 The defendant denied the allegations of negligence. It also denied the Regulations applied, as it disputed that the task which Mrs Munday was performing at the time she suffered her injury constituted hazardous manual handling. However, in the event that I was satisfied it did, the defendant alleged it had not breached the Regulations.

18 The defendant emphasised that Mrs Munday suffered her injury as a consequence of the unexpected movement of the patient and therefore any breach of negligence or the Regulations was not causative of Mrs Munday's thumb injury.

19 In the event however that I was satisfied that the defendant's negligence and/or its breach of the Regulations had caused Mrs Munday's thumb injury, the defendant alleged that Mrs Munday was contributorily negligent. Specifically, the defendant alleged that Mrs Munday failed to follow the instructions in the patient care notes to perform the slide board transfer with another nurse and failed to seek assistance from another nurse to perform the transfer. Further, it alleged that if Mrs Munday was not familiar with the slide board, then in accordance with her training, she should have sought assistance in the use of it or refused to use it.

20 In relation to Mrs Munday's claim for damages, the defendant claimed that her psychiatric injury and consequential loss was not reasonably foreseeable. The defendant alleged that the second and third incidents were unrelated to the slide board incident and that I should disregard the claimed psychiatric injury suffered subsequent to the slide board incident.

21 Further, the defendant alleged that Mrs Munday had exaggerated her injuries and incapacity. It tendered surveillance footage taken of Mrs Munday on numerous days, over several years, which it alleged demonstrated that she was able to go about her personal affairs with no apparent restriction, including an extended period of time she was active in her garden.

Mrs Munday's training and experience as a nurse

22 To determine Mrs Munday's claim, as well as understand the defendant's defence to it, it is necessary to have regard to Mrs Munday's training and experience as a nurse.

23 Mrs Munday was born in 1976 and is presently forty-three years of age. After leaving school at the end of Year 11, Mrs Munday worked in bookstores, but in approximately 2002, she obtained part-time work at a private nursing home in Surrey Hills. As part of that employment, Mrs Munday said she was trained in moving patients, who were elderly and infirm. She said for her first few shifts she was paired with a buddy nurse and was taught how to use a lifting machine and a standing machine. Mrs Munday also said that in such employment she had experience in using full body boards, and that such a task was undertaken with multiple nurses.

24 Whilst employed at this home, Mrs Munday undertook training in a TAFE course and obtained a Certificate IV in Nursing. This qualified Mrs Munday as a Division 2 Nurse.

25 Mrs Munday then subsequently worked for several months at the Karana Nursing Home. There, she said that she cared for patients with low care needs and did not generally have to use slide boards.

26 In approximately July 2005, Mrs Munday commenced employment with the defendant at its St George's premises in Kew. Mrs Munday said she cannot specifically recall her induction there. However, Mrs Munday said she was trained in the use of full body slide boards and that was a task she undertook as part of her employment. Mrs Munday said it was a task performed by more than two people.

27 Mrs Munday said in addition to using a full body slide board, there was also a Pixel (standing machine) and a sling/hoist machine available to transfer patients. She had experience in using such devices which she said was a two-person task.

28 Whilst still employed by the defendant as a Division 2 Nurse, Mrs Munday undertook studies to qualify as a Division 1 Nurse. She initially commenced this course at the University of New England and then transferred to La Trobe University. Mrs Munday said whilst studying full time, she worked approximately one to two shifts per fortnight as a Division 2 Nurse.

29 In late 2010, Mrs Munday successfully obtained her degree and then commenced her graduate year with the defendant. Mrs Munday said this involved working 40 hours per week. She said her first six-month rotation was in the Anaesthetics Department at St Vincent's hospital in Fitzroy. Then, in July 2011, Mrs Munday commenced her second rotation in the Geriatric Evaluation and Management ("GEM") Unit at St George's Hospital in Kew. Mrs Munday said this unit cared for elderly patients awaiting assessment as to their suitability for aged care placement.

30 Mrs Munday said that as part of her training to become a nurse, she had been shown how to handle patients. Further, she said that during her employment with the defendant, she had attended and completed yearly "move smart competencies"' in the use of equipment. Such training included, but was not limited to slide sheets, large patient transfer boards, lifting and standing machines and "Monkey bars", which were used by patients to assist with transfers. Ms Munday said that the transfer boards she used in such training exercises were different to the wooden board she was using at the time of the slide board incident.

31 In cross-examination, the defendant put to Mrs Munday a question contained within its 2009 Move Smart - Patient Manual Handling document. Although this questionnaire was for trainers, Mrs Munday accepted that it looked similar to tests she had completed and passed in the competency training she did annually from 2005 to 2011. The question was as follows:

"A new piece of equipment arrives in your area and you are unfamiliar with its use. What action should you take?

1. a) Refuse to use it as you have not received training
2. b) Ask your Move Smart Trainers about it

1. c) Read the instructions provided with the equipment

32 Mrs Munday said she did not know how to answer this, as she felt her answer would depend upon what the patient assessment indicated. Mr Middleton persisted in his cross-examination and said:

Q: "Doing the best, you can now, which one of the answers do you think is correct, A, B, C, D or E?---

A: I have - I have - I'd probably look for a patient assessment which is not here and it's not an answer.

Q: No, well it's giving you - it's a multiple choice?---

A: I know and I'm not - I - so, no, I cannot answer your question."

33 Mrs Munday said, based on her experience, using slide boards, standing machines, hoists and Pixels was a two-person or more activity.

34 Mrs Munday said as part of her job she would help patients in transfers, such as from the bed to the shower. She said:

"You were always buddied up with another nurse, so you would have your allocation of patients, the other nurse who is your buddy would have her allocation of patients. You would then call on each other to assist each other for lifting machine usage, standing machine usage, et cetera."

35 Mrs Munday said she would use her buddy nurse when this was dictated in the patient's paperwork.

36 Mrs Munday said whilst working for the defendant as a Division 2 Nurse on the Day Procedure Unit, she had cared for a paraplegic patient who brought in his own wooden slide board from home when he attended for surgery on multiple occasions. Mrs Munday understood that he had purpose built the board for his own needs. She said this wooden slide board was similar, but not exactly the same as the one she was using in the slide board incident.

37 On 11 September 2011, Mrs Munday worked the afternoon shift, commencing at 1.00pm. Mrs Munday said a nursing handover would occur soon after the commencement of the shift. She said at this time, she was provided with printed handover notes, which listed all the patients on the ward, including those that she was allocated to care for. On this day, one such patient was named Marjorie.[1] Mrs Munday could not recall how many other patients she was required to care for that day.

38 Mrs Munday said she had previously nursed Marjorie, who had been an inpatient at the GEM Unit since 9 July 2011. Marjorie was eighty-four-years old and Mrs Munday said she was aware that Marjorie had previously had an orthopaedic procedure. The clinical notes record Marjorie's history as including a fall affecting her right lower limb and a past history of knee replacements, shoulder repair, macular degeneration and cognitive impairment.

39 The records relevant to Marjorie's mobility needs in the days leading up to 11 September 2011 were as follows:

Subacute notes in relation to Marjorie's mobility

Transfer slide board (either '+' or '4') 2 nurses

40 Further, Marjorie's progress notes contained a physiotherapist note of 9 September 2011, which stated:

"Pt has participated in a further x1 therapy session this week

Ⓢ Nil Ⓞ Transfer: S/V slide board

...

Ⓘ W/c propulsion. Non ambulant

Ⓞ Transfers, strength + endurance

Ⓟ Continue therapy."

41 Mrs Munday said that during the handover, typed handover notes are provided to the nurses coming on to the shift. Mrs Munday had inadvertently kept the notes for 11 September 2011.[2] They are incorrectly dated 9 September 2011; however, Mrs Munday believed these to be the handover notes for 11 September 2011, as she had not worked two or three days prior to 11 September. Mrs Munday explained it was not uncommon for the handover notes to have a previous date on them. I note the defendant did not challenge Mrs Munday in respect of this document being the handover note of 11 September 2011.

42 In respect of Marjorie's mobility, the typed handover note indicated as follows:

43 Mrs Munday said that below the typed handover notes regarding Marjorie, she had made her own handwritten notes. Such notes indicated the following:

"Slide board =? Slipper pans o/night

Full Shower Standing with Pickup Frame/Wheel Chair."

44 Mrs Munday said in addition to the handover notes she was given regarding her patients, there were sub-acute care notes in respect of each patient which were kept in a blue folder, stored either at the end of the patient's bed or immediately outside their room. Mrs Munday said this folder normally only contains the current day's acute care note.

45 On 11 September 2011, the sub-acute note in respect of Marjorie said to be written at 10.00am, stated the following in respect of her mobility:

"Slide board to wheelchair and stand ... [with] PUF."

46 Mrs Munday said other records relating to a patient were stored on their medical file which was kept in the nursing station. This medical file included general progress notes, including physiotherapy notes. Mrs Munday said it also included previous sub-acute care notes. Mrs Munday said she did not ordinarily go back to look at the sub-acute notes of previous days.

47 Mrs Munday was asked to explain from where in the records she was directed that this was to be a one-person transfer of Marjorie. She said she believed that during the handover she was informed of the physiotherapist assessment, which referred to Marjorie being supervised using a slide board. Mrs Munday said she understood that Marjorie was encouraged to do things for herself and that Marjorie had been instructed in how to use the wooden slide board. Mrs Munday said she "believed" she "would have received a verbal handover" on this and could not recall seeing the exact physiotherapy note.

"A supervision task is just that, it's a supervision task, two nurses are not required for a supervision task."

49 Mrs Munday also said that if you are supervising a patient, "you don't do it for the patient, you supervise". She said, in relation to Marjorie, this involved placing the slide board for her.

50 Mrs Munday considered that standing with a pickup frame implied a certain level of independence in Marjorie. Therefore, Mrs Munday said this was also an indication to her that assisting Marjorie was a one-person task. Mrs Munday said this was "common knowledge" to her, based upon her training.

51 The slide board incident happened at approximately 8.25pm. Mrs Munday said she cannot recall whether she had taken Marjorie from her bed to go to the bathroom. She said that although she was the nurse caring for Marjorie on that shift, if she was on a break or if Marjorie had buzzed and she was unavailable, Mrs Munday's buddy nurse would have assisted Marjorie to go to the bathroom.

52 Mrs Munday explained that Marjorie was sitting on a commode which was next to the right-hand side of Marjorie's bed. Mrs Munday said the left arm of the commode chair was down, so as to enable Marjorie to move across to the bed without obstruction. Mrs Munday said she was facing towards Marjorie while the transfer to the bed took place.

53 Mrs Munday said that at the end of Marjorie's bed was a wooden slide board. Mrs Munday said it was similar in size to an open folder, with holes at either edge of the board. She said the holes were smaller than the length of her middle finger and a bit wider than half her thumb.

54 Mrs Munday said this was a piece of equipment she had not seen before and had not been trained in the use of. Mrs Munday said it was similar, but not identical, to the wooden slide board she had seen whilst working as a Division 2 Nurse in the defendant's Day Procedure Unit.

55 Mrs Munday said she had never seen a similar slide board made of plastic.

56 In her oral evidence, Mrs Munday said she placed the slide board under Marjorie's bottom and the other part of the board was resting on the bed. Mrs Munday said her right hand was holding the edge of the board, with her right thumb in the hole and her fingers on the outside. Mrs Munday said she could not recall giving Marjorie any instructions to move.

57 Mrs Munday said Marjorie came across "very quickly" and the movement was unexpected. As this happened, Mrs Munday's thumb was caught in the board, with Marjorie's weight on top. Mrs Munday said she then withdrew her hand.

58 Mrs Munday said she heard a "funny sort of like popping noise" at the time of the incident but could not say whether that was before or after she had withdrawn her hand. Mrs Munday was also unable to say where the popping sound came from.

59 Mrs Munday said she could not recall if Marjorie used the monkey bar above her head, before or after she commenced the slide.

60 Mrs Munday said she proceeded to use a towel to lift Marjorie's legs up to the bed and complete the transfer. Mrs Munday then rubbed Sorbolene cream into Marjorie's legs and that, whilst doing so, she felt pain in her thumb.

61 In cross-examination, Mrs Munday was taken to an account of the incident which she had provided in an affidavit sworn on 28 September 2017, in support of her serious injury application. In that affidavit, she stated as follows:

"... I was transferring a patient between a commode chair and bed by placing [a] wooden transfer board underneath when I injured my right thumb. I heard a noise that sounded like a 'pop' and felt immediate pain and swelling, and had difficulty moving my thumb.

I had not been shown how to use the transfer board.

I am not sure what happened. It may be that the patient moved prematurely or the board slipped. ... ."

62 Mrs Munday said she was on a lot of medication at the time she swore this affidavit. She said she was now confident in her oral evidence that the injury occurred as Marjorie moved unexpectedly and without warning.

63 The defendant tendered a typed incident report which was prepared in response to the incident. Mrs Munday said she did not type this herself but accepted she had provided some of the information contained in it. This report recorded the details of the incident as follows:

"Transfering a pt from commode to bed with a slide board. I heard loud noise 'pop' continuing to transfer pt. then my thumb hurt."

64 In a further typed entry the following day, which appears to have been written by Ms Natasha Dewhurst, one of the defendant's staff members, it was noted that:

"Move Smart Coordinator has spoken with staff member. Staff member was assisting patient post shower. Staff member placed bridging board on commode/shower chair connecting to bed. When placing board, nurse heard a popping noise and assumed it was the commode. No pain felt at this time. When nurse raised arm, she felt pain in her right thumb and noticed discolouration.

Nurse unable to recall any pinching of thumb or having caught her hand at any point during the placement of the board or assisting the patient. Correct manual handling techniques were used."

65 When this record was put to Mrs Munday, she said she could recall Ms Dewhurst calling her, but could not recall what was said. Mrs Munday denied that she told Ms Dewhurst she did not recall any pinching of her thumb or having caught her hand at any point during the placement of the board or assisting the patient.

66 The defendant did not call any oral evidence.

67 In closing submissions, Mrs Munday alleged that the defendant was negligent for:

(a) directing her to do a task without instruction or training, particularly in relation to how to grip and the position of slide board and to instruct the patient in the task;

(b) directing her to use the slide board (the source of which was not known) when she had no familiarity with it and in respect of which she had no instruction;

(c) in failing to instruct her orally or in writing that the task was a two-person task.

68 These allegations focus on two matters: Mrs Munday's claim that it was an "unusual" slide board; and a claim concerning whether instructions indicated it was a one or two-person task.

69 Mrs Munday gave evidence that she had seen a similar slide board in the Day Procedure Unit, but otherwise had not seen such a slide board in her many years of nursing. Mrs Munday accepted she had experience and training in using full body slide boards. However, I consider the dimensions of a full-sized slide board are vastly different to the slide board which Mrs Munday described as being the size of an open folder.

70 The defendant did not challenge Mrs Munday in her assertion that based on her experience, this particular slide board was not a common device. Nor did the defendant call any evidence to contradict her evidence on this. In closing submissions, the defendant submitted that although it was open to me to find this slide board was unique to Mrs Munday, there was no evidence that it was unique to the defendant. However, given Mrs Munday had been on this ward for approximately three months at the time of the slide board incident, and she had not seen or used such a board in that time, I am satisfied that this type of slide board was relatively unusual on the defendant's GEM Ward.

71 Although I am satisfied that Mrs Munday was trained in the use of full body boards, I am not satisfied that Mrs Munday was trained in the use of this particular slide board. I note the defendant relied upon the general training it provided in its Move Smart program, but there is no evidence that this covered the specific use of the unusual board which was placed at the end of Marjorie's bed.

72 The defendant was under a non-delegable obligation to provide Mrs Munday with a safe system of work. This obligation is not discharged by simply training Mrs Munday to ask for help if confronted with a new piece of equipment. In permitting an unusual slide board to be present in a patient's room, the defendant had an obligation to ensure its nurses, including Mrs Munday, were trained in the safe use of such a device. To simply rely on general training of its nurses to ask for assistance if presented with a new device, does not sufficiently discharge its duty to ensure a safe system of work.

73 A nurse caring for a patient requiring assistance with a transfer should be trained in the use of the provided equipment. I am satisfied that the defendant knew or ought to have known that this device was unusual, and unlike other slide boards Mrs Munday was trained and experienced in. Before permitting Mrs Munday to attend upon Marjorie in her room, the defendant was obliged to train Mrs Munday in the safe use of this unusual device. The defendant ought to have foreseen that a nurse will often be so focused on helping and caring for the patient, that the nurse will manage, as best they can, with the equipment available to them. As such, so as to minimise the risk of injury, the defendant had a duty to positively ensure nurses working on its ward were trained in the equipment provided. The defendant's focus on its generic training to nurses in the Move Smart program that they should ask for help if presented with an unfamiliar piece of equipment, is, in my view, only relevant to its defence of contributory negligence.

74 In closing submissions, Mr Middleton accepted that on 11 September 2011, the transferring of Marjorie was a two-person task. However, he also contended that two nurses were not required to facilitate a move that a patient was to do for themself. In that regard, Mr Middleton suggested that, at the time of the incident, Marjorie was to move herself, and Mrs Munday was simply required to supervise the movement.

75 Mr Tobin submitted that Mrs Munday was inferentially directed to do the transfer as a one-person task.

76 Having reviewed all the records relevant to Marjorie's mobility needs, I consider it confusing as to whether one or two nurses were required to assist with her mobility on 11 September 2011. On previous days it had clearly stated "2 nurses" for transfers. The handover note for 11 September 2011 referred to a Pixel; however, Mrs Munday's written note referred to a transfer with slide board. The physiotherapist's note referred to Marjorie being supervised for transfers.

77 The clarity of the requirement of the need for two nurses in the notes in the days prior to 11 September 2011, is in stark contrast to the absence of this requirement on the day Mrs Munday was injured.

78 I am not satisfied there was a formal direction to Mrs Munday that the transfer of Marjorie was to be a one-person task. However, in comparison to the previous days' records, I consider the records as to what nursing assistance Marjorie required on 11 September 2011, were ambiguous. I accept that, given the absence of a positive direction in the handover and sub-acute notes that transfers of Marjorie on this day involved two nurses, Mrs Munday was able to infer it was to be a one-person transfer. I consider that the defendant's failure to clearly state the requirement of a two-person transfer in the sub-acute notes and in the typed handover notes, constituted a failure by it to properly instruct Mrs Munday as to how she was to perform this task in respect of Marjorie on this day.

79 The defendant could have avoided this breach of its duty of care, by clearly stating in Marjorie's sub-acute notes and the handover sheet, that two nurses were required for all transfers of Marjorie on this day. The defendant had ensured this was done in its records for Marjorie on 8 and 9 September 2011, and with minimal effort required, it could and should have done so on 11 September 2011 too.

Was the Defendant's breach of duty a cause of Mrs Munday's injury?

80 Mrs Munday said her injury was suffered when Marjorie moved unexpectedly. To succeed in her claim, Mrs Munday must satisfy me, on the balance of probabilities, that the defendant's negligence was a cause of her injury. The enquiry into the cause of the incident is "wholly retrospective"[3] and seeks to identify what happened and why.[4] That is, what was the probable course of events for Mrs Munday, if the defendant's negligence had not occurred?[5]

81 In her closing submissions, it was stated that Mrs Munday's injury occurred "by reason of the thumb being in the board at the time of the patient movement onto the board". It was noted that Mrs Munday "adopted the approach of putting her thumb down into the board hole rather than her fingers and gripping the board from underneath with the thumb free".

82 The defendant submitted that Mrs Munday failed to establish a causal connection between the defendant's negligence and her injury, as there is no evidence as to what the safe system of transfer ought to have been, and how such measures would have avoided Mrs Munday's injury.

83 In closing submissions, the defendant referred to the Court of Appeal decision in Govic v Boral Australian Gypsum Ltd,[6] in which the Court noted that the onus was on a plaintiff to provide evidence as to what the proper system of work should have been.

84 Further, the defendant referred to the High Court decision in Swain v Waverley Municipal Council[7] and comments made by McHugh J that in some cases, common knowledge or common sense is sufficient for a plaintiff to satisfy the court of how the injury could have been avoided. Whereas in other cases, "where the issues involve 'technical knowledge and experience,' the plaintiff must provide evidence as to what the defendant ought to have done".[8]

85 The defendant submitted that what is, and is not, a practicable alternative system of work or procedure for a nurse, is a field of technical knowledge and experience. As no such evidence was adduced at the hearing, the defendant contended that I could not be satisfied that Mrs Munday's injury would have been avoided.

86 Mrs Munday submitted this was not a case that required technical expertise in which she was required to call a nursing expert to testify concerning reasonably practicable alternatives and a safer system of work.

87 I do not accept this. At the conclusion of the evidence I was, and remain, uncertain as to whether or not training in the use of the unusual slide board, or the addition of an extra nurse would have avoided injury to Mrs Munday, which occurred as a consequence of Mrs Munday having her thumb in the board when Marjorie moved unexpectedly.

88 In relation to training in the unusual board, there is no evidence before me as to the following matters:

• What is the purpose of the holes at each end of the board?

• Where is the board to be placed in relation to the patient?

• How is the board put into position and then secured during the transfer?

• Where should the nurse's hands be, and in particular, the nurse's thumb and fingers, whilst the patient is transferring from one surface to another?

• What methods could be adopted to ensure the patient did not move until safe to do so?

89 I consider my acceptance that the defendant was obliged to train Mrs Munday in the safe use of the unusual board is, of itself, a recognition that the safe use of the slide board is not common sense. If it was, it logically follows that a qualified nurse would not require specific training in its use.

90 In the absence of evidence to explain what the training instruction would have involved, it is impermissible for me to speculate as to how training in the use of the unusual board would have reduced the risk of Marjorie moving unexpectedly and Mrs Munday's thumb being caught in the board. I do not consider this is a situation where it can be inferred that "by evidence or admission, left unexplained, that the injury arose from the defendant's negligence".[9]

91 In view of the above, Mrs Munday has failed to satisfy me that the defendant's failure in training Mrs Munday in the use of the unusual board, was a cause of her thumb injury.

92 In relation to a two-person task, I note there is no evidence as to the following matters:

• Where each nurse stands relative to the patient;

• Where the nurses place their hands - are either nurse's hands placed on the patient? If so, where? Are either nurse's hands positioned on the patient to restrain the patient, so as to minimise the risk of an unexpected move by the patient?

• Do both nurses or one nurse touch the board? If so, at which end and in what position?

93 I am not satisfied it is a matter of common sense that the very presence of an extra nurse would avoid or reduce the risk of injury from a patient moving unexpectedly. I consider it is a matter that should have been the subject of expert nursing opinion, to address the matters highlighted above.

94 The circumstances of this case can be contrasted to a nurse who injures his or her back moving a patient on their own. In such a situation, it would be a matter of common sense and could be inferred, that two nurses sharing that task would reduce the risk of injury to the spine. However, here, I am uncertain as to how the presence of two nurses would have avoided the injury to Mrs Munday's hand.

95 In closing submissions, Mr Tobin stated that if there were two nurses performing the task, then one nurse would be in a position to control the patient, such that there would not be the opportunity for the unexpected movement of the patient. I am not satisfied that this is necessarily so. It may be the two nurses were to be present to merely supervise and guard against a possible fall, if the patient had difficulties in an independent transfer.

96 In the absence of evidence, it is impermissible for me to speculate as to what difference the presence of two nurses would have made in the transferring of Marjorie. Therefore, Mrs Munday has failed to satisfy me that the defendant's negligence in not clearly instructing her that two nurses be involved in the transfer of Marjorie on this day, was a cause of her injuries.

Mrs Munday's claim in respect of the Regulations

97 Regulation 1.1.5 defines "hazardous manual handling" as:

"(a) manual handling having any of the following characteristics -

(i) repetitive or sustained application of force;

(ii) repetitive or sustained awkward posture;

(iii) repetitive or sustained movement;

(iv) application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

Example

The force required to lift or otherwise handle heavy weights, to push or pull objects that are hard to move, to operate tools that require the use of 2 hands to exert sufficient force but that are designed for one hand or to operate tools that require squeezing of grips that are wide apart.

(v) exposure to sustained vibration;

(b) manual handling of live persons or animals;

(c) manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold."

(sic).

98 Mrs Munday claims that she suffered her injury whilst undertaking "hazardous manual handling", as she was manually handling a live person - namely her patient Marjorie. If I am so satisfied, then the defendant has duties imposed on it under Chapter 3 of the Regulations.

99 The defendant disputed the Regulations applied. The defendant submitted that the characteristics identified in subparagraph 1.1.5(a) had no relevance to the task which Mrs Munday was performing at the time she suffered her injury.

100 In relation to subparagraph 1.1.5(b), the defendant submitted that at the time Mrs Munday suffered her injury, she was not manual handling Marjorie, but rather was setting up the device in anticipation of a transfer from the commode to the bed.

101 The defendant referred me to several decisions in support of its submission that the Regulations have no application in this case.

102 The High Court most recently considered these Regulations in Deal v Father Pius Kodakkathanath.[10] In that case, Ms Deal, a primary school teacher, suffered injury when she fell from a stepladder whilst removing papier mâché displays from a classroom pin-board. Ms Deal alleged that her injury was caused by the defendant's negligence and/or breach of its statutory duty arising under the Regulations.

103 It was not in dispute that Ms Deal's injury arose in whole or in part from manual handling in the workplace and was a "musculoskeletal disorder". Further, it was not in dispute that the task she was performing was a "manual handling" task, and also a "hazardous manual handling task", within the meaning of the Regulations. The issue for determination by the High Court was whether the risk of a musculoskeletal disorder can properly be conceived of as a risk "associated with" the hazardous manual handling task.

104 In a unanimous decision, the High Court determined that in regards to Regulation 3.1.2, the risks of musculoskeletal disorder that are associated with a hazardous manual handling task "are confined to risks of musculoskeletal disorder that arise from, and thus are caused by, something which is intrinsic to the hazardous manual handling task."[11] The Court held that "it would have been open to the jury to find that the risk of the appellant falling from the step ladder as she did in the course of carrying out the hazardous manual handling task of removing displays from a pin-board with the use of a step ladder was a risk of musculoskeletal disorder 'associated with' that hazardous manual handling task within the meaning of regs 3.1.1 and 3.1.2".[12]

105 The High Court concluded there was evidence from which the jury could have inferred "that it was reasonably practicable for the respondent to identify the task of taking down the displays with the use of the step ladder as a task involving hazardous manual handling"[13], and that it was "reasonably practicable for the respondent to take steps to eliminate or substantially reduce the risk which eventuated".[14]

106 In Deal, the High Court referred to a decision of J Forrest J in Lindsay-Field v Three Chimneys Farm Pty Ltd.[15] In that case, in the course of her employment, Ms Lindsay-Field was kicked in the head by a mare, when removing the afterbirth from the mare, who had just foaled. Ms Lindsay-Field alleged that the defendant was negligent and/or in breach of its statutory duty arising under the Regulations.

107 In relation to her claim for a breach of the statutory duty, J Forrest J noted that manual handling is defined in the Regulations as "any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object".[16] J Forrest J found that at the time of injury, Ms Lindsay-Field "was not restraining or applying any physical force to the mare".[17] Instead, "she was endeavouring to place herself in a position near the hindquarters or the rear of the horse so that she could tie up the afterbirth"[18] and was not undertaking any lifting, pushing or pulling, nor was she holding the mare.

108 Accordingly, his Honour found that this did not fall within the definition of "manual handling". He said that whilst it would have been necessary for Ms Lindsay-Field to hold the afterbirth in order to tie it, his Honour was "not satisfied that any true application of force was likely to be involved in this exercise"[19] and thus, did not fall within the definition of "manual handling"[20].

109 His Honour did not accept that such activity was of the type "intended to be covered by the Regulations".[21] Noting the objective of the Regulations was "directed towards activities (and, particularly repetitive actions) which require the application of force in the course of the particular activity (be it lifting, pushing, pulling or holding) and thus result in a risk of injury".[22] His Honour noted that the Regulations were designed to prevent that type of injury, and that "is not the case here".[23]

110 Further, his Honour noted that the risk of injury was occasioned by the position Ms Lindsay-Field was required to take behind the mare, "not from the stresses or forces involved in tying the afterbirth",[24] or handling of an object (the afterbirth) that created that risk of injury.[25] Accordingly, his Honour concluded that the circumstances surrounding the injury fell outside the scope of the Regulations and its objects.[26]

111 I note J Forrest J's observation that "an abattoir worker or a shearer involved in the actual handling of the animal (be it by pushing, restraining or holding) would clearly fall within the definition and the objectives of the Regulations if he or she sustained injury as a result of the actions of the animal".[27]

112 Finally, the defendant referred me to a decision of T Forrest J in Meade v Nillumbik Australia Pty Ltd & Anor.[28] In that case, Mr Meade suffered his injury when he was preparing to use his foot to stamp down cardboard waste in a large industrial rubbish bin, to allow more waste to go into it. As Mr Meade stood on the metal lip on top of the waste bin, he took hold of the lid of the bin, and without warning, the lid fell from a vertical position. As a result, Mr Meade lost his footing, fell to the ground and suffered injury.

113 On the day of the trial, Mr Meade sought to amend his statement of claim to include a cause of action that alleged his employer had breached the Regulations relevant to hazardous manual handling, falls and a failure to provide information, instruction and training. T Forrest J refused the proposed amendments against the first defendant as he was not satisfied there was a "connection between the risk of injury arising from the manual handling activity and what actually eventuated".[29] T Forrest J considered that Mr Meade's injury was not sustained whilst undertaking an activity "associated with that hazardous manual handling task"[30] rather that "he was positioning himself preparatory to undertaking that task".[31]

114 These three cases demonstrate that the Regulations cover activities associated with or intrinsic to manual handling tasks, but not activities in preparation for, or subsequent to, a manual handling task.

115 I am satisfied that the unusual slide board was a device which was to be used for the task of transferring Marjorie from the commode to her bed. However, without knowing the steps for the task of transferring, it is unclear whether the injury happened in anticipation of the transfer or getting into position to execute the transfer. Alternatively, if I was to accept that the task of transferring Marjorie had actually started, in the absence of any expert evidence, it is unclear to me whether the task was intended to involve any actual pushing, restraining or holding of the patient by the nurse. If the task did not involve any application of force by the nurse, then consistent with the reasoning in Lindsay-Field,[32] I cannot be satisfied that it involved manual handling.

116 In view of the above, I am not satisfied that the Regulations applied to the task Mrs Munday was performing at the time she was injured. I therefore dismiss her claim for breach of statutory duty under the Regulations.

117 As Mrs Munday has failed to satisfy me that the defendant's negligence was a cause of her injury, and has also failed to satisfy me that the Regulations applied to the task she was performing when injured, it is not necessary for me to assess her claim for damages.

[1] For the patient's privacy, in this judgment I will simply refer to this patient as Marjorie, with no reference to her surname

[2] Mrs Munday said that ordinarily she would not take handover notes home. However, Mrs Munday believes she had accidentally left them in the pickpocket where she had stored those notes, on the day she suffered her injury. She explained these notes were later found by her husband when he was cleaning their home.

[3] Vairy v Wyong Shire Council [2005] HCA 62 at paragraph [124]

[5] Strong v Woolworths Ltd [2012] HCA 5 at paragraph [32]

[6] [2015] VSCA 130

[7] [2005] HCA 4

[9] Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 480

[10] [2016] HCA 31 ('Deal')

[11] Deal (ibid) at paragraph [41]

[12] Deal (ibid) at paragraph [48]

[15] [2010] VSC 436

[28] [2018] VSC 328