Plaintiff v Defendant

1 On 20 June 2006, Ellen Hopgood, the plaintiff, was working in the course of her employment as a nurse in the emergency department of the Wodonga Hospital. At approximately 6.30am on that day, her attention was drawn to a patient ("the patient") in cubicle two of the emergency department, who was fitting, frothing at the mouth and blue. The patient was a heavyset man, weighing approximately 130 kilograms. He had what was described as a "bull neck".

2 Upon seeing the patient, the plaintiff called to the only other nurse on duty in the emergency department (Ms Jessica Mowlam) and rushed to the patient. No assistance to the plaintiff was forthcoming. Ms Mowlam, and the only doctor on duty in the Hospital that night, were in room four of the emergency department, behind a closed door, attending to another emergency.

3 Upon reaching the patient, the plaintiff observed him to be blue and frothing at the mouth. The patient was on his back, and fitting was ongoing. The plaintiff immediately attempted to roll the patient onto his side, by pulling him towards her. As she did this, she felt "a really sickening deep sharp pain" at her mid back level. As the evidence disclosed, this turned out to be a large T9/10 disc prolapse which has had (and continues to have) major consequences so far as the plaintiff is concerned.

4 At the time she suffered injury, the plaintiff was employed by the Wodonga Regional Health Service, the defendant. In May 2010, the plaintiff commenced this proceeding claiming damages from the defendant in relation to the injuries she sustained on 20 June 2006. On 18 April 2012, a jury was empanelled to try this proceeding. The plaintiff's claim, as pursued at trial, was a claim in negligence, and a claim for breaches of the statutory duties imposed by regulations 13, 14 and 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999.[1]

5 On 26 April 2012 (day six of the trial), after counsel for the defendant had addressed, and while counsel for the plaintiff was in the middle of his address, senior counsel for the defendant raised a matter in the absence of the jury in the following terms:

"Your Honour, I neglected before we closed our case to seek leave to argue a matter non obstante verdicto, which is that the plaintiff has not proved an alternative form of system to that which is in existence."

6 Rather than delay the trial any further, I reserved leave to the defendant to make any application it sought to make concerning this issue once the jury's verdict had been obtained.

7 On 27 April 2012 (day seven of the trial), the jury returned a verdict for the plaintiff. The jury's verdict was given by the following answers to the following questions:

"1. Was there any negligence on the part of the defendant which was a cause of any injury, loss or damage to the plaintiff?---Yes.

1. 2. Was there any breach of the Occupational Health & Safety (Manual Handling) Regulations 1999 by the defendant which was a cause of any injury loss or damage to the plaintiff?---Yes.
2. 3. If yes to question 1 and/or question 2, in what sum do you assess:

(a) the plaintiff's pain and suffering damages?---$400,000.

(b) the plaintiff's pecuniary loss damages?[2]---$880,000.

1. 4. If yes to question 1 and/or question 2, was there any contributory negligence on the part of the plaintiff which was a cause of the plaintiff's injury?---No."

8 Following the delivery of the jury's verdict, Senior Counsel for the defendant stated that his client would not pursue its non obstante application. However, shortly after this, he sought the opportunity to take instructions in relation to that question. In the circumstances, I gave the defendant until Monday 30 April to determine whether it wished to persist with the application.

9 On 30 April 2012, the defendant stated that it persisted with its application. The defendant then applied for judgment notwithstanding the jury's verdict on the grounds that the plaintiff was said to have failed to prove there was an alternative system of work which was practicable and reasonable and which would have prevented the injury. Following the conclusion of the defendant's submissions, I rejected the defendant's application, entered judgment in favour of the plaintiff in accordance with the jury's verdict, and said I would provide reasons in due course. These are my reasons for rejecting the defendant's application.

10 On 20 June 2006, the plaintiff was working the nightshift as a nurse in the emergency department of the Wodonga Hospital. In 2006, the emergency department nightshift comprised two nurses, one receptionist, one doctor and a porter. The plaintiff commenced her shift at 9.00pm. The patient arrived at 11.00pm by ambulance. The plaintiff had attended the patient on approximately four prior occasions. The plaintiff's unchallenged evidence was that the patient was known to be a bit of a drinker and he would come in after having a fit in his wife's bed at home - the patient's wife having rung an ambulance to send him in.

11 On the night in question, the patient was in a groggy condition from having had a fit. He was, as I have said, a large gentleman, being around 130 kilograms in weight, with a very broad neck. He was intoxicated. He was transferred from the ambulance to a hospital trolley. The rails were put up, and he was put into cubicle two. He was put into a position lying on his right side, facing into the centre of cubicle two.

12 At about 6.30am, the plaintiff was in the medication room in the emergency department, doing work necessary for the next shift. The other nurse (Ms Mowlam) was in room four with the door closed, attending to a pregnant patient who was bleeding. The doctor was also in room four. There were seven patients in the emergency department at this time.

13 The receptionist called out that there was something wrong with the patient in cubicle two. As soon as the plaintiff came out to the front of the medication room, she could see that the patient was fitting. She called to Ms Mowlam. She said "Jess I need help", but there was no response.

14 The plaintiff could see that the patient was quite blue. He had rolled onto his back and he was shaking quite violently. She gave evidence that she was aware that this was a life or death situation (this was not disputed at trial). The patient needed oxygen and he needed it quickly. The plaintiff put her foot right on the end of the bed to bring the bed down to her level so she could reach the patient. She leaned over the railings and pulled the patient towards her so that she could open his airway. She said she grasped him on the shoulder and around the hip. As she was performing this manoeuvre, she "felt a really sickening deep sharp pain right at her bra strap level, and it took her breath away". The plaintiff described freezing for a second, but she kept going (as she put it) "because I knew if I didn't - I needed to get this guy's airway open, and you've got your adrenalin rushing and well so you keep going". From the evidence of the plaintiff's neurosurgeon, Mr Christopher Thien, it is apparent that the plaintiff ruptured her T9/10 disc at the time she attempted to pull the patient onto his side to clear his airway.

15 The plaintiff's principal case was that the emergency department was not adequately staffed on 20 June 2006. In 2007, some time after the accident, changes were made to the night shift staffing levels in the emergency department. Of specific relevance, instead of two nurses with one pager between them, the number of nurses was increased to four (with two pagers). Further, instead of one doctor, two doctors were then employed. Additionally, there is now a security guard, which means that the porter (who was outside at the time of the accident) no longer has to go outside the hospital.

16 The plaintiff's case was that if the emergency department was staffed in October 2006 with the staffing levels put in place in 2007, then the plaintiff's injury would have been averted: it being contended by the plaintiff that with four nurses in the emergency department, there would have likely been two (at least) to assist in manoeuvring the patient onto his side so that his airways could be opened.

17 While essentially not contesting the plaintiff's description of the accident and the fact that she sustained a significant injury, the defendant denied any negligence or breach of statutory duty and, in the alternative, alleged that the plaintiff was guilty of contributory negligence. There were two central planks to the defendant's defence. First, what was described as the Hospital's "no-lift policy" - which it was said should have prevented the plaintiff from engaging in the manoeuvre she engaged in when she suffered injury. Secondly, the defendant's "code blue" policy - which it said required the plaintiff to press an emergency button and wait for assistance, rather than performing the manoeuvre she performed.

18 In cross-examination of the plaintiff, it was also suggested that staffing levels in the emergency department were reasonable because they had been the subject of an enterprise bargaining agreement permitting (or requiring) the defendant to staff the emergency department as it did on 20 June 2006. While the plaintiff agreed in cross-examination that nursing levels in the emergency department were the subject of an agreement between the union and the management of the hospital, when the relevant enterprise bargaining agreement was tendered,[3] the position became far less clear. That document, on its terms, entitled the jury to conclude that the written agreement to which reference had been made required three (if not four) nurses on duty at 6.30am on 20 June 2006.[4]

19 The principles to be applied in determining an application by a defendant for judgment notwithstanding the jury's verdict can be found in Phillips v Ellinson Brothers Pty Ltd,[5] Hayward v Georges Limited,[6] Naxakis v Western General Hospital[7] and Herald & Weekly Times Limited v Popovic.[8] Kyrou J helpfully summarised these principles in King v Amaca Pty Ltd.[9] His Honour said:[10]

"[7] In order for a defendant's application for judgment notwithstanding the jury's verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.

[8] Where there is evidence to support the jury's verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury's conclusion.

[9] A trial judge hearing an application for judgment notwithstanding the jury's verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

[10] A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases."[11]

20 In argument, counsel for the defendant accepted the correctness of these propositions.

21 In making the application on behalf of the defendant, Senior Counsel for the defendant submitted:[12]

"Your Honour, we say that there is no evidence that could satisfy a jury of the plaintiff having produced an alternative to the emergency system that was in place."

22 Senior Counsel for the defendant then described the plaintiff's case as follows:[13]

"As we understand the plaintiff's case, it is really put on a couple of bases and that is that in 2007 there were four nurses and two doctors and the second is, Your Honour, that there was not any proper training in relation to the emergency that faced the plaintiff at that time."

23 Senior Counsel for the defendant then referred me to the judgment of Young CJ in EQ in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer & Ors.[14] His Honour said:

"[84] The main problem for the plaintiff in the present case is that he bears the onus to show that there are precautions which the defendant could and therefore, should have reasonably taken to protect him from the risk. Unless the plaintiff discharges this onus, he does not establish that there was a breach of duty.

[85] Trindade and Cane, Law of Torts in Australia 3rd ed (Oxford University Press) p 594 says, excluding footnotes:

'Perhaps the most difficult problem that arises in actions in which failure to provide a safe system of work is alleged is that of proving some alternative was practicable and reasonable and that it would have prevented the injury. The onus, of course, rests on the plaintiff, and in some cases courts have been particularly harsh on plaintiffs in requiring a high standard of probative material on this issue. There is an element of risk in most industrial operations, even the simplest, and it is not enough for the plaintiff to show the existence of the risk. Plaintiff must also show (sic) that it was capable of reduction or elimination by some practicable precaution or safeguard without unduly impeding the employer's business.'

[86] In Swain v Waverley MC [2005] HCA 4; (2005) 79 ALJR 565 at 575, McHugh J said at [40]:

'The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there 'must be' a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.'"

24 In support of the defendant's application, reliance was placed upon policies of the defendant described as the "patient no-lift" policy[15] and the "Code Blue" policy.[16] One of the aims of the patient no-lift policy (as described in the written document embodying it[17]) was stated to be:

"Aiming for best practice in-patient (sic) handling techniques and strive to eliminate manual lifting and handling of patients in all but exceptional or life threatening situations."

25 Mr Jackson, who was the defendant's "clinical OH&S patient no-lift coordinator" at the time of the accident was cross-examined about the written patient no-lift policy as follows:[18]

"Go to the third dot point and read that to the jury please?'Aiming for the best practice in patient handling techniques and strive to eliminate manual lifting and handling of patients in all but exceptional life-threatening situations.'

So it's wrong to say, as you told the jury, that the policy of the hospital was that the no lift policy applied in all situations?According to that, that would be correct.

So it is wrong to say that the no lift policy of the hospital in 2006 applied in all situations?According to this, that would be correct.

Were you aware of the existence of the policy when you gave your evidence?I also didn't read that bit, I'm sure, I'm sorry.

Pretty important, isn't it?It is, yes.

So if you now accept the policy in 2006 of the Wodonga Hospital in relation to patient no lift, it was that whilst it strived to eliminate manual lifting and the handling of patients, but that there were exceptions in exceptional or life-threatening circumstances?According to this policy, yes.

This is the policy of the hospital, isn't it?Correct, yes."

26 The Code Blue policy relied upon by the defendant contained the following statements:

Located throughout Patient Areas labelled Medical Emergency.

OR/ALSO

Phone will be answered immediately by Office staff (during office hours) and High Dependency Unit (HDU) staff after hours.

...

♦ Emergency button will activate pagers of the following:

...

2. After hours:

- Assistant Director of Nursing - After Hours.

- Salaried Medical Officer.

- Critical Care Nurse.

- Emergency Department Nurse.

- Evening/Night Nursing Attendant/Porter.

..."

27 In support of its application, the defendant then relied upon the following evidence given by the plaintiff in cross-examination:

"In the training that you received and the instructions, were you ever given any information, training or instructions in relation to how the no lift policy should apply in an emergency situation?No lift policies should apply all the time, no matter what the situation, at all times."[19]

"This procedure that you adopted on this night was one might think understandable but it was against the policy that you'd been instructed in by the hospital?I don't believe that.

Why not?Because my duty of care was to that patient to open his airway in the quickest possible way I could.

As I said, it might be thought of as being understandable but it was against the policies, as you understood it, of the hospital?The policies as the 'no lift'.

But also against ?The buzzer? I did not push the buzzer, no."[20]

"And it would have been the simplest of things to press the button?I could have pressed the button, but in my estimation and my experience and my clinical judgment at the time, I didn't have the time for anyone to arrive. I had to deal with him then and there. This gentleman was already quite hypoxic, starved of oxygen."[21]

"You know that a Code Blue becomes the absolute priority for the hospital?Yes, it is a priority to save the patient's life."[22]

28 In the course of his submissions, Senior Counsel for the defendant also referred to the following evidence given by the plaintiff in re-examination:

"You also told the jury that you did not ring Code Blue. Why didn't you ring Code Blue?I didn't ring Code Blue. That's not a done practice. The practice is to push the button. Now if I pushed the button I hurt my back right at the very beginning when I manoeuvred the patient. Even if I pushed the button and it had gone off on these people - that I'm not aware the medical officer or anyone else carries the page - I would've already hurt my back before they got there. I wasn't going to stand and watch the patient die in front of me while waiting for people to arrive from different units.

Mr Rush asked you this morning and he asked you again this afternoon about not knocking on the door or not going closer to Room 4 and this morning he asked you whether you had knocked on the door, you said 'No'. Why was it that you did not ?Because it was a time critical situation. Minutes, seconds in something like that - when someone is oxygen deprived is time critical, you've got to do what you can and you preserve life at all costs."[23]

29 Having referred to these passages in the plaintiff's evidence, Senior Counsel for the defendant put the submission as follows:

"Your Honour, we say that what that amounts to on the evidence is a scenario that it has not been demonstrated on the evidence that a system or an appropriate method of responding to emergency different to the one that was available at the hospital at the time and we say on the evidence should have been instituted at the time, it was something that this jury could rely on in saying that what was in place at the hospital was negligent.

In relation to the provision of four nurses, true it is, Your Honour, the plaintiff gave evidence in relation to that at transcript 126 line 14 where the plaintiff says 'Well look, the nurses might have helped' but it appears from her evidence she couldn't be sure of that. The only other evidence is that in 2007 there were four nurses on duty but there is no evidence before the court as to why that change occurred. So they are the matters that we raise, Your Honour, and we rely on that authority."[24]

30 The propositions of law advanced by the defendant in its application may be accepted. That said, there is no merit in the defendant's application. Notwithstanding the agreement by the plaintiff that the no-lift policy applied in all circumstances, it was well open to the jury to conclude that in fact the no-lift policy had no relevance to the circumstances in this case. The plaintiff was faced with a patient in a life-threatening situation. It was entirely foreseeable that the plaintiff might perform professionally and competently in such circumstances by attempting to save the patient's life by rolling him onto his side before assistance might arrive from other parts of the hospital. So much could have been concluded either from the mere application of the no-lift policy document, or from the evidence of the Clinical OH&S Patient No-lift Coordinator (Mr Jackson):[25]

"In the same situation with the no-lift policy what happens to a nurse presented with a life and death situation with a person whose airway may be obstructed lying on his back, what happens there?---Difficult. What I teach in patient no-lift is to look after yourself and look after the patient."

31 So far as the Code Blue policy was concerned, it was also well open to the jury to conclude that this was not the panacea the defendant submitted it to be. Even if the plaintiff had pressed the emergency button, the evidence discloses that the plaintiff would have (in the course of attempting to save the patient's life) suffered her injury before anyone else was likely to have responded (accepting that anyone would have responded - the defendant not calling at trial the Assistant Director of Nursing - After Hours, the Salaried Medical Officer, the Critical Care Nurse or the Night Porter referred to in Exhibit 2).

32 The decision of Coca-Cola Amatil (NSW) Pty Ltd v Pareeza & Ors[26] relied upon by the defendant is a very different case from the present case. In Pareeza, the plaintiff was the unfortunate victim of a hold-up who was shot while delivering Coca-Cola products to a soft drink dispensing machine. In that case, the Court concluded that even if it be assumed that Coca-Cola should have provided some form of training that was not provided to the plaintiff, concerning risk minimisation, this was unlikely to have avoided the shooting that took place in daylight and in the presence of witnesses.

33 In the present case, if the plaintiff had been confronted with the events of 20 June 2006 in an emergency department with 2007 staffing levels (four nurses in the emergency department, two pagers and two doctors in the hospital), there is every likelihood that the plaintiff's injury would have been averted as one or some of these people would have arrived at the patient's bed at the same time to assist in the necessary manoeuvring of the patient to open or clear his airways. Put shortly, it was well open to the jury to reach this conclusion.

34 For these reasons, the defendant's application for judgment notwithstanding the jury's verdict was rejected and judgment was entered in accordance with the jury's verdict on 30 April 2012.

[1] Regulation 13 of the Occupational Health & Safety (Manual Handling) Regulations requires an employer to identify tasks involving hazardous manual handling. Regulation 14 requires an employer to ensure that an assessment is made of any task involving hazardous manual handling that is identified, so as to determine whether there is any risk of a musculoskeletal disorder affecting an employee occurring as a result of that task. Regulation 15 requires an employer to ensure that any risk of a musculoskeletal disorder affecting an employee is eliminated or, if it is not practicable to eliminate the risk, reduced so far as is practicable.

It was not disputed in this proceeding that in attempting to roll the patient, the plaintiff was engaged in "manual handling" as defined by regulation 5 of the Occupational Health & Safety (Manual Handling) Regulations, and that this manual handling constituted "hazardous manual handling" by reason of the operation of regulation 13(2)(b) ("manual handling of live persons ...").

[2] "Pain and suffering damages" and "pecuniary loss damages" are defined in s 134AB(37) of the Accident Compensation Act 1985.

[3] Exhibit C, an agreement entitled "Nurses (Victorian Public Health Sector) Multiple Business Agreement 2004 - 2007".

[4] See further, the evidence of Mr O'Callaghan called on behalf of the plaintiff and the evidence of Mrs Maddock called on behalf of the defendant.

[5] [1941] HCA 35; (1941) 65 CLR 221.

[6] [1966] VicRp 28; [1966] VR 202.

[7] [1999] HCA 22; (1999) 197 CLR 269.

[8] [2003] VSCA 161; (2003) 9 VR 1.

[9] [2011] VSC 422, and upheld on appeal in Amaca Pty Ltd v King [2011] VSCA 447.

[14] [2006] NSWCA 45, [84]-[86]. See also [146].

[15] Described by witnesses (including the plaintiff), but embodied in a written document headed "Policy Wodonga Regional Health Service - patient no-lift" (Exhibit G).

[16] Again, described by witnesses but embodied in a document headed "Code Blue - medical emergency or cardiac arrest orders" (Exhibit 2).

[26] [2006] NSWCA 45.