1 Early on the morning of 20 June 2006, Ellen Hopgood was working as a nurse in the emergency department of the Wodonga Hospital. (The hospital is operated by the appellant, which was Ms Hopgood's employer. For convenience, I will refer to the appellant as the 'hospital'.) Ms Hopgood was in the medication room, doing a restocking, when the receptionist called out to her that there was 'something wrong with the gentleman in cubicle 2'.

2 The patient in question ('Mr S') was known to Ms Hopgood from four previous admissions. He had come into the emergency department the previous evening, having had a fit. As Ms Hopgood moved towards cubicle 2, she could tell that Mr S was having another fit 'because of the rattling of the bed rails and the bed'. As she walked, she called to the other nurse on duty in the emergency department, saying she needed help. There was no response, so she called again. Again there was no response.

3 When she reached the cubicle, Ms Hopgood could see that Mr S was 'foaming at the mouth ... quite blue, shaking quite violently'. Judging that he needed oxygen quickly, Ms Hopgood lowered the bed, leaned over the railings and pulled him towards her so that she could open his airway. As she did this, she felt 'a really sickening deep sharp pain' at her midback level. Ms Hopgood had suffered a severe disc prolapse, which has seriously disabled her. She has not worked since. According to the medical evidence, she is probably totally and permanently incapacitated.

4 Ms Hopgood sued the hospital for damages for negligence and/or breach of statutory duty. After an eight day trial, a Supreme Court jury delivered a verdict in her favour, finding the hospital liable for negligence and breach of statutory duty. The jury awarded damages for pain and suffering of $400,000 and for loss of earnings of $880,000. The jury found that Ms Hopgood had not been contributorily negligent.

5 Following the verdict, the hospital applied to the trial judge for judgment in its favour notwithstanding the jury's verdict, on the ground that Ms Hopgood had failed to prove that there was an alternative system of work which was practicable and reasonable and which would have prevented her injury. The judge refused the application and entered judgment in favour of Ms Hopgood in accordance with the jury's verdict. Shortly afterwards, his Honour provided written reasons for that ruling.[1]

6 On this appeal, the hospital challenged both the jury's verdict and the judge's ruling. No issue was taken with the jury's finding that the hospital had been in breach of its duty of care to Ms Hopgood, but it was submitted that it was not open to the jury to conclude that:

(a) the breach of duty caused Ms Hopgood's injury; or

(b) there was no contributory negligence on her part.

7 The breach of duty was the hospital's failure to have the emergency department adequately staffed. In 2007, the year after this incident, the hospital changed the night shift staffing levels in the emergency department. The number of nurses was increased from two to four, and the number of doctors from one to two. Ms Hopgood's case was that, had those staffing levels been in place in June 2006, she would not have suffered injury. The hospital's case, at trial and on appeal, was that the jury could not have been satisfied that the presence of additional staff would have prevented the injury.

8 As to contributory negligence, the hospital relied on its 'no lift' manual handling policy which, it was said, should have prevented Ms Hopgood from attempting to move Mr S by herself in the way that she did. Secondly, the hospital relied on its 'Code Blue' emergency policy which, it was said, required Ms Hopgood to press an emergency button and wait until other staff came to assist her, rather than acting on her own.

9 For reasons which follow, I consider that it was open to the jury, on the evidence before them, to reach the conclusions which they did. The trial judge was right to so find. There were other grounds of appeal contending that the judge's directions were defective. Those grounds also fail. The appeal must, therefore, be dismissed.

10 In her evidenceinchief, Ms Hopgood said that when she walked into the cubicle, Mr S had rolled onto his back. She said:

So therefore his neck was down like this and his airway was blocked ... I was aware that it was quite a life or death situation, he needed oxygen and he needed it quickly ...

because he was a big man and someone who's fitting is very hard to hold anyway - you don't try to hold them - but he was also a dead weight. So if he kept rolling - if I pulled him, he would have quite likely rolled out onto me and onto the floor.

11 Standing on her tiptoes, Ms Hopgood reached over the railings and grasped Mr S with both hands to pull him from his back onto his side. He was extremely heavy to manoeuvre:

He was a large man and he was a dead weight and he was still jerking, but I knew I had to get his airway open and get him onto the side, otherwise he was going to die ...

Having grasped Mr S, Ms Hopgood 'pushed his head back so his neck was extended to get the airway open.'

12 Under crossexamination, Ms Hopgood acknowledged that she was aware of the 'Code Blue' emergency procedure. She accepted that 'a life or death situation' demanded the use of 'Code Blue'. She answered affirmatively, however, when counsel for the hospital put the following question to her:

Was it, in essence, your decision to do what you did because you say you considered this to be a life or death situation?

She agreed that it was her belief at the time that she had no choice but to do what she did:

It needed urgent attention to open his airway otherwise a possible death outcome would have came (sic).

13 When it was put to Ms Hopgood that 'it would have been the simplest of things to press the button', she answered:

I could have pressed the button, but in my estimation and my experience and my clinical judgment at the time, I did not 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.

14 When asked what she would 'expect the hospital to do in a situation like that', Ms Hopgood replied:

To have more staff around, more hands on deck that could be in view of everybody so we didn't have people behind closed doors, maybe curtains.

This was a reference to the fact that, when Ms Hopgood called out for assistance, the other nurse and the emergency doctor were assisting another patient, behind a closed door. Ms Hopgood said that, if another nurse had been available when she called for help, the other nurse

would have come, same as I came. We would have pushed the bed aside. She could have gone behind, pushed the patient from that way and I could have manoeuvred him from the front.

15 Asked in reexamination why she had not pushed the button, Ms Hopgood said:

I was not going to stand and watch the patient die in front of me while waiting for people to arrive from different units.

Asked why she had not gone to the cubicle where the other nurse and the doctor were, she replied:

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.

16 Under crossexamination, Ms Hopgood had said that her duty of care was to Mr S. Asked in reexamination to explain this, she said:

My duty of care was to him, to preserve life. His life was in danger. My duty of care was to ensure that the outcome for him was as positive as it could be.

17 As noted earlier, Ms Hopgood's case at trial was that, if the 2007 staffing levels had been in place in October 2006, her injury would not have occurred. The hospital's principal contention on the appeal was that the issue of causation 'was a fundamental problem' in Ms Hopgood's case at trial. It was submitted that the judge failed to give adequate directions to the jury on the issue of causation, and that the jury's verdict on causation was not open. I deal first with the question of the judge's directions.

I want to say a little bit about causation because you will notice the first question says 'Was there any negligence on the part of the defendant which was a cause of any injury, loss or damage?'. I emphasise 'a cause'. There may be many causes of a particular injury or a particular accident, but it is sufficient for the plaintiff to succeed in relation to Questions 1 and 2 if negligence or a breach of regulation ... was a cause. It does not have to be the sole cause, the dominant cause, the best cause, the most obvious cause, it just has to be a cause. Once you find it is a cause then causation is established.

Causation, the law says, is a matter of common sense. It is not some scientific or philosophical process but it is a question for you, as the judges of the fact, to conclude, whether you do, as a matter of common sense that negligence was a cause of the injury in this case or whether in Question 2 breach of the regulation was a cause of the plaintiff's injury. If you come to the contributory negligence question whether, if you find some contributory negligence, that is whether that was a cause of the injury. That is causation.

19 When his Honour asked counsel whether there were any exceptions to the charge, counsel for the hospital made the following submission:

[T]he question is what has the plaintiff demonstrated should have been done by the employer, or a reasonable employer, in response to the risk? That is the question that the jury needs to answer, and they can't answer that question, your Honour, without being asked to consider the Code Blue procedure. That has not been mentioned in relation to this area of the law. It is the plaintiff's job to show that the Code Blue in the hospital is not good enough, and it is the plaintiff's job to show if it's not good enough then there should have been another system in response.

20 The judge responded that the 'Code Blue' was 'about as irrelevant a document as there possibly could be'. Referring to Ms Hopgood's evidence about what she had done, and why, his Honour said:

If she had pressed the Code Blue button and done what she said she was going to do anyway, as it was a causal question, it could not have had anything to do with it.

COUNSEL: And the causal question that your Honour hasn't directed the jury to, in that very short period of time what is it that the plaintiff says should have been provided as a system of work to prevent that happening?

HIS HONOUR: The plaintiff has made that patently clear on many occasions, and that is the staffing levels in the emergency department that were in existence in 2007.

COUNSEL: That is the point. The staffing levels the plaintiff says were not adequate or sufficient, and all we're saying is it has not been demonstrated in any way ---

HIS HONOUR: That is a matter for the jury.

COUNSEL: Your Honour, we say that in making the assessment of the system that was in operation at the time, that it cannot be put that it's a matter for the jury when the plaintiff has an obligation, if the Code Blue is not sufficient the plaintiff has an obligation to say in these particular circumstances that your Honour identifies of a critical period of time, what is it that should have been put in place, how is the system defective, what is it that should replace it?

HIS HONOUR: I am against you on that submission.

21 In my respectful opinion, there was no deficiency in the charge to the jury. It is axiomatic that, in considering a complaint of this kind, the appellate court must look at the whole of the charge.[2] As counsel for Ms Hopgood pointed out, the correct approach was enunciated by Windeyer J in Jones v Dunkel:[3]

It has often been said that to examine a summingup, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance. On top of all this, the summingup has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get.

22 The trial judge's obligation was to equip the jury adequately for the task of addressing the questions which they had to answer.[4] What was required to discharge that obligation was to be judged in the light of everything that had gone before. I have read the transcript of the trial, including the final addresses and the judge's charge. In my respectful opinion, what his Honour told the jury was entirely sufficient for the purpose.

23 Not only were the issues in the trial relatively uncomplicated, but the conduct of the trial by experienced counsel on both sides had very clearly exposed the matters in contest for the jury's consideration. As counsel for Ms Hopgood pointed out, the judge in his summary of the respective cases identified the steps which Ms Hopgood alleged the hospital should reasonably have taken to avoid the risk of injury. There could have been no doubt in the jury's mind but that Ms Hopgood had to prove (on the balance of probabilities) that the presence of additional staff would have prevented her injury.

24 Both counsel had specifically addressed this issue in their final addresses to the jury. Senior counsel for the hospital drew the jury's attention to a passage in Ms Hopgood's evidence, where he had asked her why she had not rung 'Code Blue'. Ms Hopgood replied:

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.

25 Counsel told the jury that this was important evidence, because

what it demonstrates is that even before there was consideration to sounding off the emergency procedure the plaintiff had done her back. The first thing that was done was to move the patient in the manner that she described. Now, members of the jury, we say that that indicates just how quickly, how the importance of the way in which this was done and to blame it in those circumstances on a lack of nursing staff or support in emergency we say is unreal.

Even if there had been a nurse on the other side on the evidence that has been given by the plaintiff in this case it would have made no difference.

...

Members of the jury, you might think that what is being put by [counsel for Ms Hopgood] is really that nurses should have to walk about in twos, because really you might think that is the only way in which this situation could be addressed. We say ... that any allegation of insufficient nurses has got nothing to do with it.

...

[T]o prove negligence the plaintiff here must point to a reasonably practicable alternative - a reasonably practicable alternative course of conduct that could have avoided or reduced the consequences of injury.

You do not establish negligence by assertion of risk. It is for the plaintiff to prove the reasonably practicable alternative. We say, members of the jury, if you were to say 'Well, what should have been done as a reasonably practicable alternative?' you have no evidence in this case to act on and we say when you consider it all that there is not much more that the hospital could have done.[5]

26 Unsurprisingly, counsel for Ms Hopgood sought to meet these arguments head on. In relation to the particular passage from Ms Hopgood's evidence to which counsel for the hospital had drawn attention, he pointed out that the remainder of the relevant answer was in these terms:

I wasn't going to stand and watch the patient die in front of me while waiting for people to arrive from different units.

Counsel rejected the hospital's proposition that Ms Hopgood had chosen not to follow the 'no lift' policy. He said to the jury:

She had no choice at all about the matter. She is faced with an emergency situation, an urgent situation, a life or death situation. She couldn't follow the policy because the assistance was not there as [it] should have been pursuant to the policy.

27 As to whether the presence of additional staff would have prevented the injury, counsel said:

There was a good prospect that if the other nurse had been able to attend and assist [Ms Hopgood], with the resultant reduction in the load which [she] was required to apply to move Mr S, the injury would not have occurred.

28 In his charge, the judge dealt with the hospital's case on causation in these terms:

As to the allegation that there were not enough nurses, [counsel] said the evidence in relation to that matter just does not stack up. He placed considerable reliance on the Code Blue document ... He said the emergency procedure in the Code Blue document was very important ... He said the training and policy in place was 'pretty comprehensive and thorough and [Ms Hopgood] was aware of it and familiar with it. He said it was a system followed in hospitals elsewhere. He said on the evidence the hospital had taken reasonable care. He said the incident was not caused by a lack of support and it was not caused by insufficient nurses.

...

He said it was totally unreasonable when a nurse decided not to follow hospital protocols and procedures when by operation of Code Blue a pager would go off and a doctor in the room just five metres away. He said the hospital was not at fault. It had appropriate systems in place ... There was nothing more in reality that the [hospital] could ... provide for in an emergency situation that would have nursing or support staff there on the evidence within half a minute.[6]

29 Whether the question of causation in a common law action for negligence is governed by statute or by the common law depends on the circumstances of the injury. A statutory causation test (contained in div 3 of pt X of the Wrongs Act 1958 (Vic)) has been in force in Victoria since 2003, but the provisions had no application here because the case concerned a workplace injury.[7] A common law claim arising out of a transport accident is likewise excluded from the scope of the statute.[8] It is not immediately apparent what policy considerations might explain this bifurcation. It has obvious disadvantages, as there are distinct differences between the two tests.[9] This creates an unnecessary layer of complexity for practitioners and trial judges and prevents the development of a unified set of principles in this important area of the law.

30 The statute being inapplicable, this case is governed by the common law of causation. As Kiefel J (with whom Hayne and Bell JJ agreed) said in Tabet v Gett:[10]

The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. 'More probable' means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.[11]

31 When - as here - a plaintiff alleges a negligent omission, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis.[12] That is, the plaintiff must propound an alternative state of facts, premised upon the defendant's having exercised reasonable care and, specifically, upon there having been no such omission. The plaintiff's counterfactual hypothesis must identify:

(a) what the defendant would have done had reasonable care been exercised; and

(b) how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered.[13]

32 Causal questions of this kind often arise in connection with workplace accidents and the related field of occupational health and safety. As Professors HLA Hart and Tony Honoré said in Causation in the Law:

[W]here the omitted precaution consists ... in a failure to supply safeguards or equipment to be used by workers, it is always relevant to show that, in a given case where these safeguards were not provided, they would not have been used if provided or, if used, would not have been sufficient to avert the harm, as they are in the standard case. Proof in this case that a workman would not have used the equipment or that it would have been ineffective as a guard against this fire would show that the omission was not causally connected with the harm.[14]

33 It was just such an analysis which led to the failure of the negligence claim dealt with by the High Court in Quigley v Commonwealth.[15] A quarantine inspector had been injured while attempting to board a vessel from a launch. The sole breach alleged of the employer's duty of care was the failure to provide a second crew member on the quarantine launch, to assist the inspector when he was boarding other ships. In their joint judgment, Mason and Aickin JJ said:

The issue then is whether there was evidence on which a jury could determine that the [employer's] failure to provide a safe system of work caused or contributed to the accident. Where a defendant fails to provide a safe system of work, it is for the plaintiff to show that the appropriate safety measures would have been effective and that he would have made use of them had they been available.[16]

34 Their Honours accepted that it was open to the jury to conclude that the inspector's injury would not have occurred had he been supported from below by a second crewman. But there was no evidence to justify an inference that, had a second crewman been available, the inspector would have called on that person for assistance. Their Honours said:

We know that his view was that there was no need for assistance at the time in question, that is, when he made his second attempt to board. One might conjecture that the [inspector] might have called on an experienced crew-man for assistance more readily than [a person who was actually present on the vessel, as an observer, for the first time]. This is one possibility, but it seems to us to be no more than conjecture or speculation. The [inspector] could have put this matter beyond doubt by his own evidence. He failed to do so, in circumstances where his evidence, so far as it goes, invites the inference that he would have made no call for assistance.[17]

35 It can be seen immediately that, while the present causation question is almost identical to that which arose in Quigley, the evidence bearing on the question is quite different. Ms Hopgood's evidence was that the first thing she did upon realising that Mr S was having a fit was to call for assistance from the other nurse in emergency. There being no response, she called a second time. When asked what assistance she might have derived from a second nurse, she gave the unsurprising answer that the other nurse would have assisted her in turning Mr S so that his airway could be freed.[18]

36 The jury were entitled, in my view, to conclude that this evidence accorded with commonsense and experience. And, as Kiefel J said in Tabet, the resolution of the question of causation has been said 'to involve the commonsense idea of one matter being the cause of another'.[19] Far from suggesting that Ms Hopgood was recklessly intent on dealing with the problem singlehandedly, the evidence demonstrated clearly that she was aware of the need for - and hence sought - assistance before she even reached Mr S. She specifically confirmed in crossexamination that this was so.

37 Likewise, in my view, the jury were entitled to conclude that, had the additional nurses (and doctor) been working in the emergency department that morning, one or other of them would probably have been available to respond, and would have responded, to Ms Hopgood's cries for help. This was, once again, a perfectly common sense proposition. The fact that Ms Hopgood elected, when noone responded to her call for help, to proceed on her own in no way invalidates the causal hypothesis. Rather, it confirms that the breach was causally significant. It was precisely because there were insufficient staff to deal with the foreseeable exigencies of a true emergency that Ms Hopgood was constrained, in the circumstances of great urgency which confronted her, to act on her own.

38 As noted earlier, the trial judge refused the hospital's application for judgment notwithstanding the jury's verdict. It was contended for the hospital that Ms Hopgood had failed to prove that there was an alternative system of work which was practicable and reasonable and which would have prevented the injury. Argument in support of the application focused, in particular, on the causation question.

39 The hospital's submissions to the trial judge relied on the decision of the New South Wales Court of Appeal in CocaCola Amatil (NSW) Pty Ltd v Pareezer.[20] In that case, the plaintiff worker had been injured in the course of carrying out his duties of collecting money on behalf of his employer. It was accepted that the risk of such an occurrence was foreseeable and its consequences were potentially very grave. The difficulty for the plaintiff, however, was to establish what other steps the employer should have taken and that its failure to do so caused his injury.

40 In his ruling, the trial judge quoted the following statement by Young CJ in Eq in Pareezer:

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.[21]

The trial judge described the circumstances in Pareezer as 'very different' from the present case, saying:

In [Pareezer], the plaintiff was the unfortunate victim of a holdup 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.

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.[22]

41 In its appeal submission, the hospital argued that the judge here erred in distinguishing Pareezer. According to the written submission, the reasoning of the New South Wales Court of Appeal on the causation issue

was directly relevant to the issue the trial judge was required to determine, namely, whether [Ms Hopgood] had established (to the requisite standard) that the 'extra steps' the [hospital] could have taken would have prevented her injury.

On the appeal, particular reliance was placed on the following passages from the judgment of Mason P in Pareezer:

[A]ssuming breach ... I move to the causation issue, observing that the court must decide whether the negligently omitted conduct would probably have made a difference in the particular circumstances. Of course, the plaintiff need only establish that the negligent omission materially contributed to his injury.

...

Sadly for the [plaintiff], I am not persuaded that the extra steps that the [employer] could have (and let it be assumed should have) taken would have saved the [plaintiff] from being shot. Extra training about risk minimisation is unlikely to have avoided the shooting that took place in daylight and the presence of witnesses.[23]

42 There is nothing in this argument, in my view. The statements of principle in Pareezer were, with respect, entirely orthodox. The approach of the trial judge in the present case was, in turn, an orthodox application of those principles. As with Quigley, so with Pareezer the causation question was the same but the facts - and the answer to the question - were very different from those in the present case. The jury in the present case were entitled on the evidence to conclude that the causal link had been established. Nothing said in Pareezer had any bearing on that factual conclusion. His Honour was right to reach the conclusion which he did.

43 The remaining question is whether, upon reaching Mr S's bedside and realising that she would receive no assistance from within the emergency department, Ms Hopgood was contributorily negligent by failing to activate the 'Code Blue' procedure by pressing the button behind the bed. I turn now to that question.

44 At the trial, Ms Hopgood was crossexamined about her failure to comply with the 'no lift' policy. This was a detailed policy published by the hospital. It stated that the hospital was obliged under the Occupational Health and Safety Act 2004 (Vic), and the Occupational Health and Safety Manual Handling Code of Practice 2000, 'to minimise the risk to employees involved in manual handling tasks'.

To achieve a reduction in [musculoskeletal injuries related to patient handling] and to promote independence and mobility for our patients, WRHS will utilise a Patient No Lift System into all areas where patient handling occurs. This system will incorporate a program of risk identification, assessment and control, associated with patient handling and related environmental issues.

The patient handling techniques were said to be 'the only routine methods to be used to handle patients'.[24] Importantly, however, the policy was subject to exceptions:

for exceptional, or lifethreatening situations, or for physiotherapy staff who are trained in specific therapeutic methods of patient handling.

46 Ms Hopgood's unchallenged evidence was that, although she had been trained in the 'no lift' policy, there had been no training directed at showing how patients should be lifted in an emergency. She said that the policy was directed at:

controlled movements of patients ... planned things that you're going to have to do.

According to Ms Hopgood, the 'no lift trainer', Mr Jackson (a witness later called by the hospital), had said to her after the incident that there was nothing she could have done differently 'because it was an emergency'. This evidence was not challenged, nor was it contradicted by Mr Jackson when he gave evidence.

47 In final address, senior counsel for the hospital invited the jury to find that Ms Hopgood 'chose or decided not to follow the policy, not to seek assistance'. This was, he contended,

a fundamental issue. The hospital has a policy, it is a no lift policy, that policy was known by [Ms Hopgood] and the reasons for it were known by [her] and it was [she] that admittedly in [a] difficult situation and circumstances chose not to follow it. So, why is the Wodonga Hospital negligent in that situation? Mrs Hopgood says, 'I had a duty of care to the patient' and that is her personal view.

Her duty of care we say ... cannot entitle her to override the direction, the policy of the employer in the work situation. In effect, [she] is saying 'It's urgent. I had to act quickly and that meant I could ignore your policy'. It maybe. But if that is the way then you could not say that the hospital is negligent.

48 Mr Jackson had been the 'no lift coordinator' at the hospital at the time of this incident. He was asked in examinationinchief what should be done under the 'no lift' policy if a nurse was 'presented with a life and death situation with a person whose airway may be obstructed lying on his back'. Mr Jackson replied:

Difficult. What I teach in patient no lift is to look after yourself and to look after the patient.

Asked what he meant by 'look after yourself', he said:

49 Mr Jackson was pressed on this matter in crossexamination by counsel for Ms Hopgood. Mr Jackson had referred to resuscitation guidelines which included the instruction 'send for help'. Asked what the nurse should do if help was not available, Mr Jackson said:

He agreed with Ms Hopgood's counsel that the nurse should not 'stand and watch the patient die', but should tend to the patient and try and save his life.

50 Asked whether the nurse's first thought should be to avoid the risk of injury to herself, rather than to save the patient's life, Mr Jackson said, 'It's both'. Counsel for Ms Hopgood then put to him the following proposition:

In a situation where a patient is in a life or death situation and that patient has to be manoeuvred into another position ... if there is only one nurse there that nurse has a duty to tend to that patient and move him into a position where his life might be saved.

51 Although reliance was placed on the 'no lift' policy in the final address to the jury of counsel for the hospital, the appeal submission regarding contributory negligence concentrated on the 'Code Blue' policy. The 'Code Blue' procedure was set out on a single page. It contained a simple instruction, to the effect that emergency assistance could be summoned at any time, either by pressing the red emergency button or by dialling a particular number.

52 According to the policy document, pressing the emergency button would activate various pagers. If the emergency occurred after hours, the following persons would have their pagers activated:

• assistant director of nursing (after hours);
• salaried medical officer;
• critical care nurse;
• emergency department nurse; and
• evening/night nursing attendant/porter.

53 Asked about each of these people, Ms Hopgood said:

• she did not know whether the assistant director of nursing had a pager with her that morning;
• the salaried medical officer was the emergency doctor referred to earlier, who was fully occupied with the other patient;
• the 'critical care nurse' was the nurse in the High Dependency Unit;
• Ms Hopgood herself was the emergency department nurse; and
• she did not know whether the porter had a pager.

[A] lot of the time the staff in HDU aren't trained to come to the codes, so two of the emergency department staff must go to the codes, and that was happening quite regularly.

54 As set out earlier, Ms Hopgood's evidence was that her decision to act immediately to relieve Mr S's airway obstruction, without pressing the emergency button, was based on her judgment that if she waited for others to respond to the emergency call, it might be too late to save Mr S's life. It was not suggested to Ms Hopgood in crossexamination either that this was not an honestly held belief or that it was an unreasonable belief.

55 The hospital's appeal submission relied, instead, on the evidence of Mr Jackson about how long it would be likely to take the critical care nurse to arrive, after the emergency button was pressed:

If the staff member in the critical care unit wasn't doing anything particular at the time and they could rush off straight away, it's a run down the corridor, 50 to 60 metres long, five, 10 seconds to run down the corridor.

The submission pointed out that, under crossexamination, Ms Hopgood had agreed that it would take someone 'about half a minute' to get from the High Dependency Unit to the emergency department.

56 Like Mr Jackson, however, Ms Hopgood had made the obvious point that the time taken for someone from that unit to arrive in the emergency department would depend on whether or not the staff in that unit were free to leave when the emergency call came. According to Ms Hopgood, 'There's only two staff on there at the same time'. How quickly they could respond would '[depend] on what they were doing at the time'.

57 According to the hospital's appeal submission, this evidence demonstrated that Ms Hopgood

had omitted to take a course of action available to her, namely to follow the Code Blue procedure and wait for help. [The hospital] had a system of work in place for dealing with emergencies which [Ms Hopgood] (on her own evidence) chose to ignore. [She] knew Code Blue was the hospital system providing for a priority to save [a patient's] life. Not only did [she] not follow the Code Blue procedure, she chose to wait for help ... Her conduct was not mere inadvertence, inattention or misjudgment - she was negligent.[25]

58 In answer to a question from the bench, senior counsel for the hospital submitted that, in the circumstances in which Ms Hopgood found herself, her duty to take reasonable care for herself overrode her duty to Mr S. As appears from the extract set out above, the evidence of the hospital's own witness, Mr Jackson, was to precisely the opposite effect. Unsurprisingly in my view, Mr Jackson was not prepared to say that the nurse should 'stand by and watch the patient die'. Instead, he confirmed that, in the absence of another person to assist, the nurse's duty was to assist the patient.

59 The question for the jury was whether Ms Hopgood had failed to do what was reasonably necessary for her own safety in the circumstances in which she found herself. In my opinion, it was well open to the jury to be satisfied that there had been no such failure. As discussed earlier, she had promptly - and repeatedly - called for help from the most obvious source, within the emergency department itself. No help being forthcoming, she was confronted with the need to move a patient at imminent risk of death from lack of oxygen.

60 Her professional duty was to do everything reasonably possible to save Mr S. On her unchallenged evidence, she considered that her duty of care to her patient obliged her to help him without delay. On the hospital's case, Ms Hopgood should have pressed the emergency button and then waited - for half a minute, or potentially longer, depending on who received the emergency call and whether they were immediately available - while Mr S's condition continued to deteriorate. The jury might well have viewed this as a quite unreasonable proposition, especially in the light of Mr Jackson's evidence to the contrary.

61 What matters for present purposes is that the jury were entitled to view the decision which Ms Hopgood made - treating Mr S's survival as her paramount concern - as entirely appropriate in the circumstances, and as involving no negligence on her part at all. Once again, the trial judge was correct in so holding.

62 As a separate ground of appeal, the hospital contended that the trial judge erred:

in directing the jury as to inferences available against the [hospital] by the alleged failure of the [hospital] to call those named to respond to a code blue emergency in the Code Blue Emergency Procedure document.

63 In his charge, the trial judge gave directions to the jury about what inferences they might draw about the failure of a party to call witnesses. As his Honour correctly noted, both counsel had raised this issue in final address. Counsel for the hospital had invited the jury to draw an adverse inference from Ms Hopgood's failure to call two witnesses who had provided reports to her legal team, one being an expert in safety and risk management, the other an expert in nursing. Counsel for Ms Hopgood, on the other hand, had pointed out that the hospital had not called any of the persons named in the 'Code Blue' document as expected recipients of an emergency call (other than Ms Hopgood herself) - the assistant director of nursing, the salaried medical officer, the porter, and the critical care nurse.

I need to give you some general directions as to what you can make of all of this. You cannot speculate about what any of these witnesses would have said, but where a party without explanation fails to call a witness that you might reasonably have expected them to call, if that witness' evidence had have been favourable to them, then although you cannot speculate as to what you think that witness might have said, nevertheless it is open to you to draw a couple of inferences.

The first inference you might draw is that person's evidence would not have helped the party's case. If you draw that inference you can take it into account against the party in question who did not call the witness who you expected might have called the witness, first in deciding whether to accept any particular evidence which has in fact been given either for or against the party and which relates to a matter in respect of which the person not called as a witness could have spoken, and secondly in deciding whether to draw inferences of fact which are open to you on the evidence which have been given in relation to matters in respect of which the person not called a witness could have spoken.

That is a bit of a mouthful. Let me try and break it down. If you think there is some substance in the argument made by one or either of them in their final address that the other side did not call so and so and you think that they should have called that person because they are in their camp, if I can call it that, then you can infer if you want to - you do not have to but you can infer that person's evidence would not have assisted the party who you think should have called that person.

If you draw that inference you can go on and use that to decide whether or not to accept any other evidence relevant to that person, that has been called in the case, or whether or not to draw an inference about the topic about which the person has spoken.

It is a technique that you are allowed to use. It is not compulsory, you do not have to. You might say to yourself, 'For heaven's sake, we have sat here for seven days, did we really need to hear any more evidence about this case?'. You might be completely unattracted by these arguments put by the barristers that it is a matter of great significance that particular witnesses were not called.

On the other hand, you might think it critical and a real problem for one side or the other that a particular witness was not called. I say to you again, you cannot speculate about what the person would have said, but you can use the failure to call that witness in the way that I have described.

65 In the course of the judge's charge, exception was taken to the following additional passage:

Mrs Maddock [who was the director of nursing at the hospital at the time] disagreed with [Ms Hopgood's] evidence that the assistant director of nursing did not carry a pager. Mrs Maddock said that if that was the case then that assistant director of nursing was going against all hospital requirements, they are absolutely required to carry a pager. In the end of course, members of the jury, you did not hear from any assistant director of nursing as to whether they were or were not carrying a pager on the morning in question.

66 Counsel for the hospital submitted to the judge that the hospital was

entitled to an inference as a consequence of this document that the ... Code Blue procedure would have been put into effect, the inference clearly saying that we say there is no need for us to call those witnesses because we are entitled to an inference that those persons would have been notified in accordance with the procedure.

In argument on the appeal, counsel confirmed that he was effectively relying on a 'presumption of regularity'. That is, once it was accepted by Ms Hopgood that the policy was in force at the time, it should be inferred - without the need for proof - that had the emergency button been pressed, each of the named hospital staff would have received a pager message. The trial judge rejected this submission, and in my respectful opinion he was right to do so.

67 I have already set out the evidence which Ms Hopgood gave as to her state of knowledge about the distribution of pagers.[26] Had anything in the case turned on whether those individuals were, on the morning in question, in possession of functioning pagers, no presumption of the kind contended for could have established the fact.

68 In the end, however, the significance of any failure to call witnesses was - as the judge correctly told the jury - a matter for them to evaluate. As I have said, the question confronting the jury on the issue of contributory negligence concerned the judgment which Ms Hopgood made to proceed to move the patient without pressing the emergency button, based on her assessment of the urgency of the situation and of how long it was likely to take anyone who did have a pager to respond. Although her counsel did submit to the jury that a 'Code Blue' would have been ineffective because none of the named persons were in fact in possession of a pager at the relevant time, the whole thrust of Ms Hopgood's evidence - and her case - was that, in the circumstances, she simply could not afford to wait if she were going to

69 For completeness, I would add that, contrary to the appellant's submission, the judge's direction on the nature of the adverse inferences which might be drawn was unexceptionable, and entirely in conformity with what was said in the majority judgment in Kuhl v Zurich Financial Services Australia Limited.[27]

70 I agree with the President that the appeal should be dismissed for the reasons stated by the President.

71 I have had the benefit of reading in draft the reasons for judgment of the President. I agree with them and with the conclusion that the appeal should be dismissed.

[1] Hopgood v Wodonga Regional Health Service [2012] VSC 169 ('Reasons').

[2] Schulmann v Peters [1961] ALR 209, 211-214.

[3] [1959] HCA 8; (1959) 101 CLR 298, 314.

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

2. Was there any breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 by the defendant which was a cause of any injury, loss or damage to the plaintiff?

3. If yes to question 1 and/or question 2, in what sum do you assess: (a) the plaintiff's pain and suffering damages? (b) the plaintiff's pecuniary loss damages?

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?

[7] Wrongs Act 1958 (Vic) s 45(1)(b).

[8] Ibid s 45(1)(a).

[9] See Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, 440 [43]; Zanner v Zanner [2010] NSWCA 343, [5].

[10] [2010] HCA 12; (2010) 240 CLR 537 ('Tabet').

[11] Ibid 578 [111] (emphasis added).

[12] Carolyn Sappideen and Prue Vines (eds), Fleming's The Law of Torts, (Thomson Reuters, 10th ed, 2011) 234.

[13] Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 467; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 421-2; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 379 [45], 397 [104].

[14] (Clarendon Press, 2nd ed, 1985) 127.

[15] (1981) 55 ALJR 579 ('Quigley').

[16] Ibid 542-3, citing Duyvelshaff v Cathcart & Ritchie Limited (1973) 1 ALR 125, 138, 143.

[18] See [14] above.

[19] [2010] HCA 12; (2010) 240 CLR 537, 578 [112].

[20] [2006] NSWCA 45 ('Pareezer').

[23] Pareezer [2006] NSWCA 45, [6], [9].

[25] This last proposition drew on the judgment of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, 531.

[26] See [53] above.

[27] [2011] HCA 11; (2011) 243 CLR 361, 384-5 [63]-[64].