Smith v Sydney West Area Health Service

PARTIES: Denise Allyn Smith (Appellant) Sydney West Area Health Service (formerly Wentworth Area Health Service) (Respondent)

COUNSEL: M McAuley (Appellant) J E Maconachie QC; P Khandhar (Respondent)

SOLICITORS: Everett Paull (Appellant) DLA Phillips Fox (Respondent)

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40771/07

BEAZLEY JA GILES JA MACFARLAN JA

Ex tempore 22 October 2008 Denise Allyn Smith v Sydney West Area Health Service (formerly Wentworth Area Health Service) Judgment 1 THE COURT: The appellant was injured on 27 January 2003. At the time, she was performing her duties as a nurse at Nepean Hospital (the hospital). The appellant has had some 30 years' experience as a nurse. The trial judge, his Honour Garling DCJ, accepted the evidence of the appellant, describing her as "an excellent witness". 2 The following facts were recorded by his Honour, at pp 1-2 of his judgment, as being substantially not in dispute: "… the [appellant] was employed by the [respondent] at the Nepean Hospital as a nurse in a ward which dealt mainly with patients who had cardiac problems. She started work at about 7am on 27 January 2003. It was quite a busy morning … During the morning a wardsman, Mr Gaul, asked the [appellant] to assist him in the transfer of another patient from a shower chair to an easy chair. That patient, Mr Netherby, was not really known to the [appellant]. This was the first time she had met him … she had given him breakfast and perhaps some medication. She recalled that he was about eighty-four years of age, five feet ten inches in height and weighed about ninety kilos … [or] a little less … [she] did describe him as frail and doddery. The [appellant] went to assist the wardsman. Mr Netherby was sitting in the shower chair in his pyjamas. He had already been showered and dressed. The chair is on wheels. She assisted the wardsman to lift Mr Netherby from the shower chair. Each took hold of an arm and pulled him to a standing position. He was then weight bearing and the [appellant] was holding onto him. The wardsman let go of the patient and moved the chair away. The [appellant] was the only one holding Mr Netherby but he was weight bearing. He then started to fall. He pulled the [appellant] forward and she tried to hold him. She described what happened as 'his legs crumbled'. She held onto him, she twisted her back and felt pain in her back. The wardsman came to her assistance. They placed Mr Netherby into his easy chair." 3 The appellant's claim, as it is advanced in this Court, is that Mr Gaul was guilty of a casual act of negligence in letting go of the patient, either at all, or at least without first informing her that he was proposing to do so. 4 The trial judge rejected the appellant's claim. There was no issue as to the hospital's vicarious liability should Mr Gaul have been negligent. However, his Honour was not prepared to draw the inferences he considered were necessary if negligence was to be established. His Honour said, at p 8: "The next question was whether or not Mr Gaul was negligent. It is not disputed that the hospital would be vicariously liable for his negligence. If Mr Gaul knew that there was a problem with Mr Netherby and that he may well drop or crumble to the floor if his legs gave way and that, from time to time, his legs did give way and he let go of him and walked away he would be clearly negligent. However, as I have indicated, I cannot draw that inference." 5 His Honour then said, at p 9, "The law on negligence is quite straightforward" and asked: "Was it foreseeable that, if this man was liable to crumble or fall to the floor and if he let go of him and left him with the [appellant] and he did crumble or fall to the floor, the [appellant] could be injured? The obvious answer is yes, it was foreseeable. Was there another system available? The obvious answer is yes, there were several." (Emphasis added) 6 His Honour noted that the transfer of this patient was a normal part of a nurse's work and that this type of move was not unusual. His Honour then said, at p 10: "… I have no evidence whatsoever that this man was liable to collapse or fall to the ground, then I find great difficulty in finding that there was a duty upon either the wardsman or the hospital to provide another nurse, that is a third nurse because you already have two there, or that you have a policy that you never let go of a patient who can weight bear, who can stand with someone holding him, or assisting him, and if you have such a person I could not find that you would have to put those systems I spoke of in place." 7 His Honour concluded: "That being so, I am in a very difficult position because really this case depends, in my view, on evidence and inferences which are simply not available to me because I know nothing of Mr Netherby and therefore I cannot make assumptions as to what the wardsman could or should have known and therefore I cannot see how the [appellant] could succeed." 8 The respondent contended that this finding was correct and there was no evidence that the position that the appellant was in, with Mr Gaul having moved away from the patient, was other than proper and appropriate. It further contended there was no evidence of the standards that informed the basal question of reasonableness, no evidence that the system of work in place was not reasonable, and no evidence that two people were needed to be supporting the patient at all times 9 It was submitted, likewise, that there was no evidence in respect of the patient's individual circumstances that would have made the risk of injury foreseeable. Nor was there anything to suggest prospectively that Mr Gaul regarded the patient as at risk of falling if not supported by others. It was asserted that the patient had a capacity to stand. 10 The evidence in respect of the respondent's liability was the evidence of the appellant and a statement of Mr Gaul, made on 17 March 2003, shortly after the accident. It is convenient to refer to Mr Gaul's statement first. He had little recollection of the incident but did remember "transferring the patient". He continued: "I do remember it was a difficult transfer because of his mobility. He wasn't all that mobile." 11 The undisputed parts of the appellant's evidence have already been referred to. The appellant was cross-examined as to the assessment she had made of the patient. Having regard to that assessment, it was suggested that what happened, that is, Mr Gaul moving away from the patient and leaving her as the sole person holding him, was reasonable. The evidence was as follows: "Q: Did you think he was a fall risk? A: We stood him up and he bore his own weight.

Q: … you've told us you assessed him as a fragile and doddery man? A: Yes.

Q: Did you think he was a fall risk? A: I thought that he would be able to support his own weight.

Q: And you've told us yesterday that in the past in your experience when you've assessed a patient as a fall risk, as you've said, you'd call in the troops? A: That's true.

Q: No need to call in the troops here was there? A: If it hadn't been so busy, if I'd seen the other girl and if another nurse had been there I would have called her.

Q: You wouldn't have called him, you've just said you didn't think he was a fall risk? A: Two people could have managed him, but the wardsman let go, he let go.

Q: And you wouldn't have thought a lifter was needed for that situation, would you? A: Probably not.

Q: So if there was one there that you knew about you weren't going to use it were you Mrs Smith? A: Probably not, I though that two people could do it.

Q: Why didn't you tell the wardsman to go and get a lifter? A: I thought we could do the transfer with two, if he could stand up we could do it.

Q: Well you didn't think a lifter was necessary, you told us that. A: Probably at the time, that's right. Two people could have done the transfer, but the wardsman let go. Two people could have done it if he hadn't let go." 12 It is convenient to pause at this point to comment that although the appellant said that the patient could support his own weight, it is apparent from her repeated emphasis that two people could have managed him, that she did not mean he could stand on his own, unaided. It is apparent that some of the respondent's defence of the finding in its favour was based on such an assumption. Not only is the assumption not made out, but it is apparent from his Honour's reasons that he did not understand that to be the case. The appellant, in cross-examination, also emphasised the sudden and unexpected nature of the patient "crumbling". 13 It was suggested to the appellant that she had chosen the manner in which she was holding the patient the moment before he "crumbled" and that was a technique she had always used and which had always worked. The appellant agreed with these propositions. However, those suggestions have to be read in conjunction with the surrounding evidence, where she said: "Q: If he hadn't dropped everything would have been all right. A: Both. The wardsman and I could have shared it and put him on the chair together, but the wardsman wasn't there, he was a couple of feet away. He came back as soon as I screamed."

She said that: "A: … he pulled me, he pulled me and I, well I was already holding him and he felt himself going, and he pulled me, and I supported, I grabbed him as well and tried to swing him onto the big chair." 14 Having agreed to the propositions referred to above, the appellant's cross-examination continued: "Q: There was nothing the wardsman could have done, agreed? A: He could have pushed the chair with his foot, in hindsight." 15 This answer was relied on by the respondent as indicative of hindsight reasoning, that is not available to determine the question of breach. There was no issue on the existence of a duty of care. The question essentially revolved around the foreseeability of the risk of injury: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The precise risk need not be reasonably foreseen: Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 390. 16 With respect to his Honour, he erred in his approach to this question. It is apparent from the passages of his judgment referred to above that his Honour required too much by way of knowledge of previous failures of the patient to stand unaided and to remain standing unaided and by way of foresight that the patient might fall. The true risk was one of falling, including losing balance, not of "crumbling" in the precise manner the patient did on this occasion. 17 In our opinion, the risk of injury to the appellant was reasonably foreseeable. The patient had difficulties with mobility and was frail and doddery. His physical condition was such that he needed assistance to come to a standing position from being seated in the shower chair. He also needed assistance to be walked to the easy chair to which he was to be transferred; the evidence used the language that "he took a couple of shuffles and we turned him around"; and to be seated in that chair. He was also a large man. 18 There was a risk that, if Mr Gaul moved away from the patient, at least without informing the appellant that he was about to do so, the patient might become unsteady, might place undue weight on the appellant, might react impulsively, might lose his concentration or become distracted and lose his balance or might "crumble". In circumstances where the appellant was constant in her evidence that the transfer of the patient could have been managed with two people, it can be inferred that there was a foreseeable risk that unless that is how the transfer was performed there was a risk that some such incident as happened here might have occurred. 19 The consequence of Mr Gaul having moved away in the circumstances that he did, meant that the appellant was left in the position of being the sole person managing the patient when her assessment was that two persons were needed. She was left as the sole person holding the patient in an inappropriate manner, standing slightly to one side of him with his arm beneath hers and clasped at her waist, she could not readily adjust herself so as to provide the necessary support in a safe manner. In the circumstances she was not able to take any precautionary measures such as repositioning herself in an appropriate way so as to safely support the patient. 20 It follows that there should be a verdict for the appellant and the Court proposes to make orders to that effect. As it is necessary for the parties to provide the Court with the appropriate judgment sum to which the appellant is entitled on the trial judge's findings and there may be a question as to costs order to be made, the Court will pronounce formal orders after hearing from the parties in respect of those matters. **********

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