WCRA: inconsistent versions cruel causation

Downes v Affinity Health Pty Ltd [2016] QCA 129

Holmes CJ, Morrison, Philip McMurdo JJA

The applicant was a registered nurse employed at a hospital. In 2007, a post-operative patient (the patient) under the care of the applicant attempted to leave her bed. The applicant intercepted the patient and, with assistance with another nurse, helped the patient back into bed. The applicant alleged she aggravated a spinal condition in the course of manoeuvring the patient back into bed. She brought proceedings in the District Court of Maroochydore for negligence against the defendant.

The learned trial judge (Long J) dismissed the claim, finding that the applicant had failed to establish with precision the offending manual handing or mechanism of injury was. Further, she had failed to establish the employer’s breach of duty or causation.

On appeal, it was alleged that there were four errors on part of the learned trial judge. They were as follows:

  • not finding that the hospital’s failure to provide a bed with full length cot rails was a breach of duty;
  • not finding that there was a causal link between the breach and the injury;
  • inadequately assessing past economic loss; and
  • that there should have been a finding of no breach in respect of the heightened vigilance ground

Failure to provide a bed with full length cot rails

The applicant alleged that a bed with full length cot rails should have been provided for the patient. The learned trial judge found that the presence of such a bed would have created an “even more precarious situation” of attempting to climb over the rails, however Morrison J, with whom Holmes CJ agreed, found that this was not the focus. In finding that there was a breach by the defendant, Morrison J said:

[79] In my view, that the learned trial judge’s inquiry strayed from the proper frame of reference can be seen from his referring to such a bed not preventing “any such attempt” to get out of bed, and that the presence of such a bed may have created an “even more precarious situation” of attempting to climb over the side rails. Neither focusses on the incident alleged, that is Beryl got out of bed via the gap.

[80] The evidence supported the conclusion that had the bed with full length cot rails been provided then the incident where Beryl got out of bed via the gap at the end would likely have been prevented. Thus the risk would have been avoided.

Causal link between cot rails and injury

The applicant contended that the injury was caused when she was restoring the patient to her bed. Crucial to Morrison J’s finding that causation had not been satisfied was the inconsistencies in the applicant’s account of the incident. His Honour said:

[95] The findings by the learned trial judge were that he could not rely on the evidence of either Ms Downes or Ms Wendland as to the factual circumstances surrounding the alleged injury. Specifically that meant he could not be satisfied, on Ms Downes’ evidence, that the injury was sustained at the start of the interception of Beryl, when she was holding her partly on the bed, and twisting her back. It will be recalled that there were a number of versions given by Ms Downes that said her injury was sustained later in the process, when she and Ms Wendland were lifting Beryl along the bed. If that were so then it was, on Ms Downes’ evidence, sustained as part of an exercise directly contrary to well established and known training in the no-lift policy. On Ms Wendland’s evidence, the lift along the bed was not done as described by Ms Downes.

Consequently, Morrison J, with whom Holmes CJ agreed, found that while the relevant response to the risk was having full length rails, that only protected the applicant with respect to moving the patient into bed. As it was possible that the injury had occurred while the applicant was moving the patient up the bed, it was not proved that the defendant’s negligence caused the injury.

In finding that there was a causal link between the breach and injury, Philip McMurdo JA said:

[131] … [I]n my view, there was no evidence that it was the repositioning of the patient on the bed that caused the applicant’s injury, I am unable to accept that there was a real prospect that her injury was so caused and, indeed, that this was at least as probable a cause of her injury as her taking the weight of the patient when she was out of the bed.

[132] On the findings of the primary judge with which I agree, the applicant was injured in her efforts to restore the patient to her bed. The relevant risk thereby eventuated and the respondent’s negligence caused the injury

Inadequately assessing past economic loss

The Court found that no error had been made by the trial judge in assessing past economic loss. Philip McMurdo JA said:

[136] When injured, the applicant had been a nurse for nearly 40 years and had worked at this hospital for nearly 30 years. She was not a wealthy woman and there was no reason to suppose that she would not have wished to continue her long professional career for as long as she was able to do so. However she was not in perfect health. She suffered from insulin dependent diabetes and asthma. And there was the condition of her back, which made her especially prone to an injury of the kind which she did suffer here. The likelihood of that injury was well described in the medical opinion which was set out in the primary judgment. In these circumstances, it was open to the trial judge to assess this component of her claim as he did.

Heightened vigilance

 The learned primary judge found that the respondent breached its duty of care in respect of its “inexplicable omission” to ensure that staff were aware of the patient’s situation. Morrison JA affirmed the primary decision, holding that it was open to rely on the evidence to conclude that more should have been done to bring the patient’s information the attention of hospital staff.

As to causation in this respect, Morrison JA upheld the primary decision finding that the applicant already had ample information about the patient and would not have done anything materially different even if she had all the information from the respondent.

Leave to appeal was refused.

 David Cormack – Brisbane Barrister & Mediator

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