1 The respondent suffered a back injury in the course of her employment by the appellant, and she sued for damages. Following a trial before a judge without a jury, she obtained a judgment against the appellant for damages to be assessed, such damages to be reduced by 10 per cent on account of the appellant's contributory negligence. Damages have not yet been assessed. The appellant has appealed against both the finding that it was liable and the apportionment of liability.

2 The accident occurred on 30 December 1994. The respondent was then aged 35 years. The appellant operated a nursing home and employed her as an extended care assistant ("ECA"), a job which was once known as a nurse's aide. The respondent had limited education and left school at the age of fourteen years. She obtained employment as a nurse's aide in a hospital for mentally and physically disabled patients and also geriatric inmates. Since then she had worked in a similar capacity at various establishments in northern Tasmania. In 1984 she commenced her employment by the appellant and worked as an ECA at the Cosgrove Park nursing home until the day of the accident.

3 During the 3.30pm to 8.30pm shift on which the respondent was working that day she noticed that Mr Clayton, a seventy-four year old patient, who suffered numerous disabilities, including chronic urinary incontinence, was sitting in his recliner chair in the day room, surrounded by a pool of urine and obviously requiring attention. She wheeled Mr Clayton's recliner chair to the toilet to change his saturated clothing and to otherwise attend to his toiletting needs. In this she was assisted by Miss Tracey Wilson, another ECA, with whom she was working.

4 The respondent's evidence of how she suffered her injuries was as follows. She and Miss Wilson had removed Mr Clayton's wet trousers before placing him upon the toilet to see if he could use his bowels. After a few minutes, when it became apparent that he was unable to do so, the respondent took hold of him under his right arm with her right arm, Miss Wilson took hold of his left arm under her left arm, and between them they lifted him off the toilet bowl. The respondent said that she then wiped his groin and buttocks whilst holding him erect near the hand basin and commenced to apply ointment to his buttocks area, bending over as she did so whilst maintaining a hold on his arm with hers. This caused the patient to become more restless and aggressive and he started to punch Miss Wilson. He then overbalanced and fell across the respondent. She grabbed his clean trousers, which had been put on him earlier, and managed by holding onto them to manoeuvre him into the recliner chair. As to suffering her injury she said that "I know I copped his weight, he fell on me ... (and) I had pain shoot up to the middle of my back and then back down to the lower and then that's where it stayed".

5 The learned judge did not find that the injury was suffered in precisely the manner described by the respondent, in the face of conflict between that version of events and what the respondent had reported about the accident in an accident report and a workers compensation claim form. His Honour also found that there were a number of features about the respondent's evidence which he found unconvincing. As to the precise way in which the injury was suffered his Honour said that "in any event it seems to me of little real significance" and that "at whatever stage of the process the plaintiff was injured, it seems to me the same issues must arise."

6 What the respondent had said in the accident report was:

"Was trying to transfer Mr Cyril Clayton with Tracey Wilson from toilet to arm chair. Mr Clayton fought against us, didn't want wet trousers changed. It was during the transfer that I felt the bottom part of my back grab with pain. Mr Clayton also tried to hit myself and Tracey Wilson which we were able to prevent."

7 In the workers compensation claim form she said that "a resident Mr Cyril Clayton was being aggressive whilst myself and another staff member was trying to change wet trousers when I felt strain in by (sic) back which then I felt severe pain". When answering an interrogatory as to how the injury first manifested itself she said that "during the process of struggling to get Mr Clayton to the chair I experienced pain in the mid-portion of my back towards the right side".

8 The learned judge proceeded to resolve the case simply on the basis that the respondent's back was injured as a result of Mr Clayton lurching or falling against her as she was applying ointment to his posterior, and that immediately before he did so he was weight bearing on his own feet with the assistance of the women, who were holding him firmly in position.

9 Mr Clayton was stated to have weighed about 65.5 kilograms at the time. The learned judge treated him as being of average height and weight. He had been a patient at Cosgrove Park for some years, as a result of suffering a fairly severe stroke. He had lost the use of the left side of his body and wore a calliper on his left leg. He had weakness to the left side of his face. He was unable to speak and had difficulty swallowing. He had high blood pressure and poor peripheral circulation. He was totally incontinent of urine. The evidence did not establish that he was mentally unstable, but his behaviour was unpredictable and he could be very aggressive, on occasions struggling with and trying to strike carers who were attending to him. He particularly disliked being toileted and was a very difficult patient to handle. His only means of communicating was by grunts or banging utensils to attract attention. Whilst not necessarily intellectually incompetent, he was obviously very frustrated and unhappy. Although unable to walk, he was capable of standing if supported by two carers.

10 The respondent was 165 centimetres tall and weighed 75 kilograms. She was physically fit and strong in the upper body. Miss Wilson was of average physique, about 160 centimetres tall, physically very fit and probably quite strong. Although the respondent was the heavier of the two, there was no obvious discrepancy between their height and physical capabilities.

11 The basis upon which the learned judge found the appellant liable to the respondent in negligence, was essentially that the appellant should have had in place a care plan which required the attendance of three members of staff for Mr Clayton's visits to the toilet and that the appellant breached its duty of care to the respondent by falling to have in place such a system of work.

12 The respondent called evidence from Dr Rowe, a specialist occupational physician. He categorised Mr Clayton as a "geriatric patient with complications" whose condition included "problems with weight, size, shape and condition" and who fell within the second classification for totally dependent patients referred to in Appendix C of Australian Standard 2569 - Guide to the Lifting and Moving of Patients. If that categorisation was correct, an application of the Standard to the appellant's care plan for Mr Clayton would have required the use of a minimum of three persons to be involved in any manual lifting or moving of him. Counsel for the appellant however argued at the trial that Mr Clayton would just as readily fall within the first classification in the Standard of totally dependent patients, in which case only two persons are recommended as necessary for any lifting or moving of the patient. The minimum condition of the patient to fall within this category is "prone, supine or seated" and an example is given of "head injury patients, major surgical cases, profoundly retarded patients and disabled".

13 The learned judge said that it was no easy task to characterise Mr Clayton as one or the other, and he thought it was therefore appropriate to bear in mind what he regarded as three pivotal facts of particular significance in the case. First, Mr Clayton had strength in the right side of his body, second, he was unpredictable and third, he could be violently uncooperative. In such circumstances it seemed to his Honour that unless two carers were able to concentrate their efforts on lifting, steadying and restraining him, whilst a third attended to cleaning, anointing and dressing him, a risk existed of the very type of misadventure and resultant back injury which befell the respondent. The learned judge said that it was quite plain that bending over whilst applying cream to Mr Clayton's buttocks and at the same time trying to restrain his aggression with her right arm, placed the respondent in a position of risk.

14 The defence argued that the respondent knew that a Sister Penberthy was available to assist if required and that in the circumstances the respondent should have called for her aid. The respondent agreed, despite her suggestion that Sister Penberthy was old and frail, that she could easily have obtained assistance from somebody else to help her on that particular task that night. A witness called by the respondent, Mrs Tracey Ellston, who was an ECA employed at Cosgrove Park between 1992 and 1995, said that she was aware that if two staff members were unable to control a patient such as Mr Clayton "we would call for the third staff member to come and help". She said that this occurred "mainly on the toiletting at afternoon shifts. I mean, because he would be absolutely soaked by the time we would get on at 3 (pm). I mean it would take three of us to get him in the bathroom to change him and to change him ... two would hold him up while the third actually removed his wet underwear, trousers. We would sit him back down. One would be holding him so he wouldn't strike out while the other two changed the bottom and then restrained him and redress him ... using the same procedure." Mrs Ellston did not suggest that these procedures were in any way inhibited by an absence of the prescription of a third helper in Mr Clayton's care plan.

15 The learned judge understood the care plan to be a document compiled for the assistance of carers at the institution recommending and specifying particular methods of care for individual patients, being updated and amended from time to time to cater for and accommodate changes in the patient's condition. The appellant's written care plan concerning Mr Clayton contained information of various kinds. It included, under the heading of "Physical Aggression (Intervention Required)": "Cyril will hit table & strike out if his possessions are moved. Explain what you want to do." Under the heading of "Verbal Disruption (Intervention Required)", it stated: "Loud demanding grunts and other noises. Take time to identify his needs." For "Behaviour (Intervention Required)" it stated: "Emotional instability with a threatening attitude. Comfort and support when upset." Concerning "Mobility (Assistance Required)" the care plan stated: "Able to stand to transfer with 2 carers. Wheelchair for all mobility. All transfers to utilise 2 carers." For "Toileting (Assistance Required)" it stated: "Toilet before and after meals. Total assistance with all activities (ie position hygiene etc)." It is apparent from those statements that the care plan required two carers to be in attendance at the time the respondent suffered her injury, because a transfer was involved, and it did not require or mention a need for three carers to be present at any time.

16 Although the learned judge referred to the respondent's evidence that "we were bound by the terms of the care plan", he commented that she did not regard the care plan as providing an inflexible code of procedure for attending to patients. That comment arose from her evidence that notwithstanding that the care plan made no mention of the need to use a hoist with Mr Clayton, she could have and would have acted outside the confines of the care plan by using a hoist if she had thought it appropriate to do so. His Honour found that it was clear that staff were vested with a level of discretion as to how and when they would deal with a particular patient's needs and it was equally obvious that the care plan was not a document which purported to lay down strict and rigid protocols.

17 The essential basis upon which the learned judge found the appellant liable is contained in the following passages of the reasons for judgment:

"The difficulty lay in Mr Clayton's unpredictability. I have little doubt that nine times out of ten it was quite safe for two staff members to be engaged with his toiletting episodes. His aggressive moods could develop and escalate quite rapidly however. Once his behavioural pattern had changed in this way it would be difficult to summon help from some other part of the establishment as two carers would plainly be fully engaged in trying to control him. Of course, they could desist from what they were doing and, in accordance with an accepted practice, they could have left him to cool off, so long as he had been left in a position of safety. There was no pressing urgency or heavy schedule of duties so far as I am aware which would have rendered such a course impracticable on the evening of 30 December 1994.

However, the point in question is the sufficiency of the defendant's instructions to staff and the treatment and caring protocols which the defendant had in place to be followed by staff members. As between the plaintiff and Miss Wilson I think both regarded the plaintiff as in charge of the toiletting operation by virtue of her seniority in age and experience. It would therefore be unrealistic to have expected Miss Wilson to attempt to direct the plaintiff in how to carry out the process. Bearing in mind the defendant's obligations as employer to devise and implement safe systems of work, I think it should have recognised that for Mr Clayton, who was described by many witnesses as one of the most difficult patients in the institution, a care plan requiring the attendance of three members of staff for his visits to the toilet, should have been put in place. It was not suggested by the defence that to do this would create unreasonable difficulties or involve the institution in excessive expense.

The plaintiff s discretion to call for a third helper in a situation such as that confronting her on 30 December 1994 cannot displace the defendant's responsibility to ensure that an appropriate system was in place. Without such a system there was real and appreciable risk of injury if Mr Clayton suddenly became aggressive and violent whilst being attended by fewer than three carers. There are certain similarities between this case and Sroka v Ridge Park (1981) 28 SASR 15, in which Wells J made some useful observations at 22 - 25 which could be applied here. I am satisfied on the balance of probabilities that the defendant failed in its duty of care to the plaintiff by falling to have in place the system of work contended for. No separate submissions were made to me concerning the defendant's alleged breach of statutory duty and on the findings I have made it is unnecessary to consider this further."

18 It was submitted by counsel for the appellant that to require three carers whenever Mr Clayton was toileted was to insist on a standard of care which was too high, and that the standard applied by the appellant and its staff was sufficient and reasonable, by requiring two carers to be present with a discretion whether to call in a third person to help if it was thought appropriate to do so. To require three persons at all times when toileting was an excessive response, so it was submitted, to the admittedly foreseeable risk of injury to a carer when handling Mr Clayton.

19 The test to be applied when determining the standard of care appropriate to the case requires the balancing of a number of factors. The test was expounded in Wyong Shire Council v Shirt (1979 [1980] HCA 12; 1980) 146 CLR 40 at 47 - 48 by Mason J:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

20 Having considered the relevant factors the trial court must make a judgment concerning the standard of response which ought to have been expected of a reasonable man placed in the defendant's position. Factors relied upon by the appellant included the following:

1 Mr Clayton was capable of standing if supported by two carers (one on each side of him).

2 Nine times out of ten it was quite safe for two staff members to be engaged in toileting Mr Clayton.

3 A third member of staff was available and could be called upon to assist, in the event of Mr Clayton becoming so agitated or aggressive as to require it.

4 There was no pressing urgency or heavy schedule of duties which inhibited the carers from desisting from what they were doing and, in accordance with accepted practice, leaving Mr Clayton to cool off, so long as he was left in a position of safety such as in his recliner chair or on the toilet (or, if necessary, on the floor).

5 The appellant had in place for its carers a system of work which vested the respondent with a discretion as to how she might deal with a particular patient's needs and whether to call for the assistance of another member of staff if the occasion made such a course desirable.

21 The evidence established that Mr Clayton was a most difficult patient with which to deal. It is appropriate that the evidence concerning his behaviour be detailed. The respondent's evidence concerning her experiences of him included the following. He was an uncooperative patient. He hated having his personal hygiene attended to. He demonstrated that by becoming very agitated. A carer could settle him at times, but not always. On occasions he would hit out at a carer. The respondent had been punched and hit by him several times during the toileting process. There was a male assistant "he hit constantly". A carer would not know when he was going to be aggressive. He was constantly throwing things around and grunting and shouting. He was not always aggressive, but his behaviour was erratic, and the respondent did not know when he was going to strike out at her. There were some shifts when he displayed no aggression at all and other shifts when he did. She had not suffered an injury or pain as a result of being struck by him, but the blows were forceful enough to cause her to be aware of him.

22 A registered nurse, Dianne Connaire, described Mr Clayton as difficult to handle and a person who did not accept care easily. The administration of his personal hygiene was very difficult because he did not like to be seen to. He could be aggressive, she said. By that she meant that "he made a lot of noise, a lot of sounds and he could obviously move his right side quite well and he could throw his arm around and you know throw his body, he used to try and throw the top part of his body". Mrs Connaire said that occasionally she was frightened of him. 90 per cent of the time he was difficult when she was attending to his hygiene. His behaviour was not predictable. He was completely incontinent and frequent changes were required. On a scale of one to ten in terms of degree of difficulty she would have rated him as probably an eight or nine. He was one of the most difficult patients to handle.

23 Another ECA, Jillian Austin, described Mr Clayton as an aggressive type of character who was "very, very difficult to handle". With regard to his toileting she described him as "extremely difficult because he was unpredictable, you know, you'd think it was okay to toilet him or whatever and he would get into rages or become physically aggressive and vocally aggressive, verbally aggressive". She said "he would try and lash out" and he would "try and swing out and try and kick with his legs". She thought him a strong man. As to whether she had any concerns when handling him she said: "I was very wary of him but I was also quite frightened of Mr Clayton, I remember him very well". In response to being asked whether Mr Clayton had ever hit her she said "I certainly was - got in the way a few times of when he was lashing out". Her memory of him was that he was one of the worst residents.

24 Another ECA, Tracey Ellston, described Mr Clayton as not being very co-operative in anything he did. She said it would be a fight to dress and undress him. With his right arm he would pull himself backwards and sideways. Occasionally she would have trouble with him when toileting and showering him. She said:

"If we was getting him from the bed to the chair to shower, it was, most time it was very hard. It would take two and then he would just, I mean, if he didn't want to cooperate with you he wouldn't. ... You would go to grab him, like under the arm area and he would just pull that away. I mean, you would lose grip. Bellowing. ... Bellowing, hollering. ... The arm would go, the head would shake. ... Well if you had hold of it (the arm), he'd try and pull the good arm away from you."

He had struck out at her while showering. She described him as not being very co-operative if he was toileted during the day. When asked whether she ever felt frightened of him she answered in the affirmative. There were occasions when two staff members were unable to control him and a third staff member would be called upon to assist. That occurred mainly on toileting during the afternoon shift. She said that it would take three staff members to get him into the bathroom to change him, two holding him up while the third actually removed his wet clothing. They would then sit him down and one of them would hold him so that he did not strike out, while the other two changed his clothes.

25 The appellant called only one witness, Tracey Wilson, who was an ECA at the material time and was attending to Mr Clayton, with the respondent, when the respondent suffered her injury. Her evidence was that the staff knew Mr Clayton to be aggressive. She was not frightened of him, nor had he ever attempted to strike her, but in this regard it must be noted that she had only been employed by the appellant for 3½ months prior to the respondent's injury. With regard to bathing and toileting him, she said that "you had to be always aware that he may become aggressive and, you know, always have someone else with you, not doing by yourself'. She said that he was not always like that, being unpredictable. There could have been occasions when she toileted him without any display of aggression, but she could not recall. Mr Clayton required fairly frequent toileting and changing. Concerning the incident in which the respondent was injured, Ms Wilson's evidence conflicted with that of the respondent in many respects, but she agreed that Mr Clayton "was flinging out his arms and his fists out" and it appeared to her that he was attempting to strike both her and the respondent. Her evidence of Mr Clayton's aggression at that time was that "it wasn't anything unusual for him". She said "it was something that you expected from Mr Clayton and that you always had to be prepared that he would be physically aggressive". In cross-examination she agreed that at the time of the relevant incident Mr Clayton was "violently objecting", attempting to strike both members of staff who were attending to him. She agreed that but for her and the respondent being there, he would most certainly have fallen over.

26 There was no evidence that the respondent's employees who were responsible for instructing and directing staff were unaware of the extent of Mr Clayton's aggressive behaviour. On the evidence it is beyond dispute that the experience of employees showed that it was impossible to anticipate when he would act aggressively, and he was more likely to do so when carers were attending to his hygiene, particularly when toileting him. It is also beyond dispute that he was incapable of standing unless he was supported by staff, one at each side of him, holding him up and preventing him from falling in any direction. The learned judge found that unless two carers were able to concentrate their efforts on lifting, steadying and restraining Mr Clayton, whilst a third attended to cleaning, anointing and dressing him, a risk existed of the very type of misadventure and resultant back injury which befell the respondent. That finding of fact is unchallenged by any ground of the appeal. Another unchallenged finding was that bending over whilst applying cream to Mr Clayton's bottom and at the same time trying to restrain his aggression with her right arm (and, I add, with a responsibility to support him in a standing position so that he would not fall in any direction whether or not he acted aggressively) plainly placed the respondent in a position of risk.

27 In the circumstances to which I have referred, I am not persuaded that the learned trial judge was in error when he concluded that the appellant ought to have had in place and enforced a system of work which required three members of staff to be present for Mr Clayton's visits to the toilet. It was argued for the appellant that it cannot be criticised for having in place a system of work which vested in the respondent a discretion whether or not to call a third member of staff if Mr Clayton became aggressive and impossible or difficult to handle. It was further submitted that such a system of work only failed because the respondent failed to comply with it, and that the appellant should not be held accountable for a casual instance of disobedience of the system, unless there is evidence of a general failure to enforce it. However, having regard to all of the evidence, I think the response to those submissions is that having regard to the unpredictability of Mr Clayton's aggressiveness there existed a substantial risk of injury to employees who, as was the case here, were suddenly faced with acts of aggression without then having an opportunity to obtain assistance from a third member of staff before the risk of injury materialised.

28 There was no evidence that it would be costly to the appellant or cause any inconvenience if a third employee was required to be present at the material time when Mr Clayton was taken to the toilet. To adopt the expressions used by Mason J in Wyong Shire Council v Shirt (supra) at 47, there was no evidence of "expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the (appellant) may have" had. It could only be assumed by the trial judge that to require three employees to be present at the material time would cause no expense and no difficulty. The finding of liability was in my opinion clearly open on the evidence and I would dismiss the appeal in so far as it attacks that finding.

29 Finally I deal with the appeal against the apportionment for contributory negligence, 10 percent of the fault in this case being attributed by the learned trial judge to the respondent. Slicer J has referred to the principles on appeal which should apply, and in particular to what was said in the High Court in Pennington v Norris (1956) 96 CLR I at 15 - 16 and in Podrebersek v Australian Iron &Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532. It is unnecessary for me to also state those principles in detail. In my opinion the apportionment of 90 per cent of the fault to the appellant and 10 per cent to the respondent has not been shown to be erroneous. As was pointed out by the learned judge, the respondent and Miss Wilson were engaged in their task in a separate and private area. They had little time to respond to Mr Clayton's behaviour and such responses as occurred involved attempts to quieten and restrain him. It was not reasonably open for either of them to disengage herself from the task in hand to seek the assistance of a third employee. Nor would it have been reasonable to relinquish their hold upon Mr Clayton and remove themselves from his presence, for he would inevitably have fallen and quite possibly sustained serious injury by knocking against the basin, toilet bowl or concrete floor. His Honour attributed 10 per cent of the fault for her injuries to the respondent upon the basis that if she had reflected she should have realised that there was a risk of injury before she undertook to deal with Mr Clayton. He had shown that he was agitated. However that was not unusual for him in such circumstances and the experience of the respondent was that she could usually settle him down by talking to him. A substantially greater share of the blame for her injuries must be attributed to the appellant for failing to remove the risk by requiring three employees to be present at the material time than to the respondent, in whose experience having a third member of staff present was not usual.

31 The appellant, the operator of a nursing home, was the employer of the respondent, an extended care assistant who was injured during the course of her employment. The respondent, aged 38, had worked in the industry since leaving school. The circumstances giving rise to the injury are not in issue. The respondent became aware that an elderly patient who suffered numerous disabilities, including incontinence, required attention. Accompanied by another carer, she attended to the patient, who initially became agitated since he misunderstood the purpose of her attention. The respondent assuaged the aggression and wheeled the patient to a toilet in order to change his clothes and make him clean and comfortable. The two carers assisted him onto the toilet and left him alone for some minutes. On return, they assisted him to stand so that he could be more easily cleaned. The patient again became agitated and, in the respondent's words, as the carers stood him up:

"Tracey had him by the left side and I had him by the right side. I had already had the towel and face washer on the chair ... that was close enough for me to start wiping his groins. Prior to doing that Cyril was hitting out with his fists towards Tracey ... I restrained his arm ... to restrict Cyril because he's hitting out at Tracey with his fist ... it might have been for me too, he was very aggressive. So I restricted his arm a little more ... I wiped his groins, I wiped his buttocks with the face washer ... then I put cream on ... During rubbing this cream on, Cyril had got out of control and he lent ... he fell towards me ... He was going back, his legs were going out from underneath him ... I copped his weight ... he fell on me ... I grabbed hold of his trousers and levered him into the recliner chair."

She said that when she felt the weight, "I had pain shoot up to the middle of my back and then back down to the lower and then that's where it stayed."

32 The trial of the action was limited to one of liability. The learned primary judge found the appellant to be negligent and gave judgment accordingly, "for damages to be assessed, such damages to be reduced by 10% on account of the plaintiff's contributory negligence."

33 The finding of negligence was based on the failure of the appellant to put in place an appropriate system of work whereby it was mandatory to obtain the assistance of a third person in circumstances where a potentially agitated patient may react physically with attendant stress. The primary findings of fact made were that the patient was capable of standing if supported by two carers, staff were given discretion which included calling for further assistance, a third person was readily available and the respondent could easily have obtained that assistance. In relation to the issues of agitated patients and staff discretion, the learned trial judge concluded that nine times out of ten it was safe for two carers to perform the particular task, the respondent was aware of the discretion which was not inhibited by the patient's care plan and she was aware of the patient's propensity for agitation.

34 The appellant's case on the trial was that the respondent had the discretion to call for assistance, and her decision to attend to a clearly agitated patient was within that discretion and ought not entail legal responsibility attaching to the employer. Other claims that the employer had failed to make available a mechanical hoist, and that the other carer did not posses adequate skills, were rejected. In relation to the issue of a system of work, the learned trial judge, in his judgment 52/1998 at 8, determined:

"The plaintiff's discretion to call for a third helper in a situation such as that confronting her on 30 December 1994 cannot displace the defendant's responsibility to ensure that an appropriate system was in place. Without such a system there was real and appreciable risk of injury if Mr Clayton suddenly became aggressive and violent whilst being attended by fewer than three carers."

35 In relation to the question of discretion, he found at 8:

"The plaintiff struck me as a fairly unimaginative person who set great store by the care plan which was incorporated in Mr Clayton's records, although she was aware that additional assistance could be called for if required. She had no reason to suppose that Mr Clayton would necessarily stage a violent outburst in the toilet, but she was very familiar with the type of behaviour which he in fact exhibited on the occasion in question, and she knew that he was completely unpredictable."

36 Central to the cases of both parties is the issue of knowledge of the likelihood of difficult conduct on the part of the patient. The appellant's case was that the respondent, an experienced carer, was aware of that likelihood, was not in an emergency situation and had the discretion and capacity to summon assistance. The likelihood was obvious since the earlier reaction had forewarned her. The respondent contended that the likelihood was known to the employer and it failed to make certain precautions mandatory when specific tasks were performed in relation to the care of the patient. A verdict in favour of either party on the above propositions could not be said to be against the weight of the evidence.

37 The appeal comprises mixed elements of fact and law argued on the basis that the finding represents the imposition of too high a standard upon an employer. It claims that the duty of care required simply a reasonable response to foreseeable risk of injury (Wyong v Shirt (1980 - [1980] HCA 12; 1981) 146 CLR 40). In determining that response, regard is to be had to factors such as magnitude of risk, degree of probability of occurrence and the expense and difficulty in taking alleviating action. As Mason J said in Wyong v Shirt (supra) at 47 - 48:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

38 The patient was relatively large and heavy. That the employer was aware of the patient's potential for aggression was not in issue, for the nursing notes contained some account of earlier incidents. Evidence was given by Tracey Ellston, another carer employed at the Home, that other members of staff had experienced difficulty with Mr Clayton's aggression and that on occasions a third staff member was required to control the patient's conduct. She had reported her concern to the relevant charge sister. The carer who had assisted the plaintiff on the day of the injury deposed that Mr Clayton "was known to be aggressive by staff" and that "we were informed of his aggression" which "was unpredictable". Their evidence was confirmed by two of the nursing sisters responsible for Mr Clayton's care.

39 The relevant portions of the "relevant care plan" provided:

Unable to speak. Communicates by gestures and grunts. Comprehends simplistic concepts.

Cyril will hit table and strike out if his possessions are moved. Explain what you want to do.

Emotional instability with a threatening attitude. Comfort and support when upset.

Able to stand to transfer with pick up frame and two carers. Wheelchair for all mobility. All transfers to utilise two carers.

40 Mr Clayton's incontinence, emotional instability and aggression were known to the employer. A mandatory requirement that three persons be present during toilet care would not have required great expense or caused disproportionate difficulty.

41 Whilst an employer is entitled to afford skilled employees a measure of discretion and rely on their judgment (Sroka v Ridge Park (1981) 28 SASR 15; O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225), the learned trial judge found at 88 that the plaintiff was "a fairly unimaginative person who set great store by the care plan which was incorporated in Mr Clayton's records".

42 That finding of fact lessens the effect of the appellant's argument. Given the staff assessment procedures and training programs that it conducted, the appellant was required to carefully consider the extent of any discretion which may safely be given to a person such as the respondent. It was not that the employer had given discretion, but that it had not prescribed mandatory instructions for the care of a difficult patient to those members of staff who might rely on a care plan.

43 The appellant, in the circumstances of this case, must show that the conclusion as to negligence was a consequence of disproportionate emphasis placed upon the relevant factors (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10).

44 A person was readily available to assist the two carers, and, had the care plan required the presence of three persons for Mr Clayton, as distinct from other non-aggressive patients, then the respondent presumably would have adhered to it. The findings of the learned trial judge did not represent a disproportionate emphasis, nor did he draw improper inferences.

45 The appeal against the finding of negligence is not made out.

46 The learned trial judge found that the respondent's damages ought be reduced by ten per cent by reason of her contributory negligence. His finding that she set great store by the care plan did not absolve her of responsibility. As his Honour found at 8 - 9:

"... she was aware that additional assistance could be called for if required. She had no reason to suppose that Mr Clayton would necessarily stage a violent outburst in the toilet, but she was very familiar with the type of behaviour which he in fact exhibited on the occasion in question, and she knew that he was completely unpredictable. She had had many years experience with her job and I think must have been conscious of the presence of some degree of risk whenever Mr Clayton's toiletting had to be undertaken."

47 The apportionment for contributory negligence was assessed at ten per cent. The appellant contends that the finding does not adequately reflect the relative culpability and importance of the plaintiff's conduct in the totality of all the relevant circumstances (Pennington v Norris (supra)). Those circumstances included the knowledge and experience of the respondent, the degree of discretion afforded, the ready availability of a third helper and the respondent's understanding that the care plan was not inflexible. The patient had earlier shown aggression, and, after he had been placed on the toilet, the two carers withdrew in order to give privacy. At that stage the respondent had time for reflection and knowing that she was about to attend to the cleaning of the patient, and being aware of the physical tasks and manoeuvres which were to be performed, she ought to have been conscious of a higher degree of probability of complications. She had time to summon assistance then, or at least when she re-entered the room and saw that the patient was still manifesting agitation. A higher degree of apportionment would not have been unreasonable and could not be said to be against the weight of the evidence. But interference with an apportionment is subject to constraints. In The Karamea [1921] P 76 , Lord Sterndale MR said at 78:

"... I think it would need a very strong case indeed to induce this court to interfere with his discretion as to the proportions of blame. We have power to do it, but I do not suppose that we should ever think of doing it."

In discussing this and other cases, Viscount Simon VC, in Owners of Steamship or Vessel "British Fame" v Owners of Steamship or Vessel "Macgregor" [1943] AC 197 (a case in which the primary findings were not in issue), said at 201:

"... I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and is different in essence from a mere finding of fact in the ordinary sense. It is a question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations: it involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that the courts have warned an appellate court against interfering, save in very exceptional circumstances, with the judge's apportionment."

That approach was adopted by the High Court in Pennington v Smith (supra) at 15 - 16, and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. In their joint judgment in the latter case, Gibbs CJ, Mason, Wilson, Brennan and Deane JJ stated at 532:

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594. In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did."

An apposite analogy is that of review of an assessment of damages or sentence. In this case, the learned trial judge made reference to his earlier decision in Knight v Tassal Limited B34/1993, a case in which he had made an apportionment of fifteen per cent, whilst in Sroka v Ridge Park Private Hospital (supra) (decided on a factual basis similar to this case), the apportionment was twenty per cent. That I might have made a different assessment is not of assistance to the appellant.

48 In my opinion the grounds of appeal are not made out and the appeal should be dismissed.

49 Like Crawford and Slicer JJ, whose reasons for judgment I have had the advantage of reading, I can find no error in the judgment of the learned trial judge. I agree that the appeal should be dismissed.