WCRA: slipping while showering a patient & later embolus

Wallace v RSL Care Limited [2017] QDC 161

Reid DCJ

The plaintiff was employed by the defendant as a residential care worker. In March 2008, during the course of her duties as a residential care worker, the plaintiff claimed that she was crouched while showering the patient’s legs who was seated in a wheeled shower chair. As the plaintiff attempted to stand up from the crouching position, her left foot slipped due to the wet floor causing an injury to her left ankle.

The plaintiff’s symptoms worsened in February 2010 and in March 2010, the plaintiff’s lower left leg was placed in a back slab. Subsequently, the plaintiff developed a deep venous thrombosis and pulmonary embolus in April 2010. The plaintiff suffered a second embolus in 2011. In December 2014, the plaintiff complained of pain in her hip and lower back which she claimed was a result of the symptoms of the embolus and her altered gait.

The plaintiff claimed that she suffered from ongoing symptoms which preclude her from heavy employment and enjoying her life to the fullest extent.

The defendant denied liability and submitted, inter alia, that the plaintiff’s injury in 2008 was not related to her hospital treatment in March 2010 and that the embolus was not caused by the hospital treatment in 2010 but rather due to the plaintiff’s alleged obesity.

The March 2008 incident 43

Determining whether the plaintiff’s slip in March 2008 was due to the defendant’s negligence, Reid DCJ found engineering reports to be of greatest assistance:

[30] Mr McDougall concludes that the measured ensuite surface slip resistance at the retirement village where the plaintiff was working was well below the suggested minimum requirements for wet areas according to the 2004 standard. It was also well below the requirements of Australian Standard 3661.1-1993, the previous relevant Australian Standard, which predated the construction of the units in about 2002.

[35] The evidence of Mr McDougall about the measured slip resistance of the floor is far preferable to subjective evidence of whether a particular witness felt the floor surface was, or was not, slippery. I conclude from his evidence that the floor surface represented an unacceptable risk of slipping to persons performing the tasks the plaintiff was required to perform, namely squatting to shower a patient in a wheelchair.

[42] … the surface where the plaintiff was required to work was inadequate and, as a result she slipped injuring her ankle as she described on 27 March 2008. That inadequacy was a clear breach of the employer’s obligation to take reasonable steps for the supply of its employees. In my view, the plaintiff has clearly identified that the defendant ought to have had in place a system of appropriately installing or maintaining the flooring of the ensuites. Furthermore, in my view it ought have periodically tested the surface – and by testing I mean conducting a test such as Mr McDougall and Mr Stephensen both did, and not having a law person run his hand over the surface to check the texture. I do not think it necessary testing be done in each unit, in the absence of specific complaints but periodic testing of a sample ensuite ought to have been undertaken. Any suck testing would have revealed the inadequacy of the flooring both of the engineers identified.

Finding that the defendant was negligent, his Honour went on to consider the claim of ongoing symptoms by the plaintiff between March 2008 and March 2010. In this regard, Reid DCJ said:

[57] I have some misgivings about the plaintiff’s evidence. Ultimately however, I accept that she had ongoing difficulties with her ankle and that the fall she suffered in 2008, during the course of her employment with the defendant, was the cause of her seeking medical attention in March 2010. Whilst I do not accept the explanation she gave of only being able to see her doctor for one thing at a time, that does not cause me to reject her evidence of ongoing symptoms. I think the false explanation was probably related to nervousness when giving evidence rather than the conscious determination to be untruthful.

Effect of immobilisation in plaster

As to whether the placement of the plaintiff’s lower leg in a back slab was the cause of the embolus, Reid DCJ considered the medical evidence concluding that the embolus was a result of immobilisation:

[97] After her lower leg was immobilised in a plaster backslab, either by her GP or at the local hospital, she developed a deep vein thrombosis and subsequent embolus. This was directly related to that treatment, and so to the original incident in March 2008. This caused her great distress and significant pain. Dr Peerehoom’s interventions were very effective. She remained on Warfarin for about 12 months. After ceasing Warfarin she developed a second embolus. She will now require anticoagulant medication permanently.

Quantum

His Honour assessed damages for the plaintiff in the sum of $480,784.00. General damages were assessed at common law. While his Honour had some reservations as to the symptomology of the plaintiff, it was not a matter which affected the critical period of March 2010 until mid 2015 when the plaintiff was at her worst. During this period his Honour allowed 70% of her past loss of income. However, following and by reference to the plaintiff’s ability to undertake nursing studies, loss of earning capacity for the future was only allowed at $100/week on the 5% tables over 27 years, without further discount.

Wallace v RSL Care Limited (No 2) [2017] QDC 179

The matter returned to determine costs issues.

Left for determination by his Honour were whether the plaintiff was entitled to certification of two counsel and which party, if any, should pay the costs of adjournment. The matter originally came before his Honour on 7 November 2016 but was adjourned to19 December 2016.

Two counsel

The plaintiff claimed that it was appropriate to allow for two counsel because of the complexity and voluminous documentary evidence which was used at trial. Refusing to allow for two counsel, Reid DCJ stated:

[7] Counsel for the defendant opposes that course. He submits that standard costs involve allowance “for all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff”, as provided for in r 702 of the UCPR. The determination of such costs involves a costs assessor exercising a broad discretion given to her or him by r 721 thereof.

[9] Having heard and determined the matter, I am not disposed to certify that two counsel were required by the plaintiff in order to present the case in such a manner that justice could be done. Whilst not straightforward, the matter was not unusually complicated. The trial occupied three days. Not a large number of expert witnesses were called. Whilst the volume of material was significant, it was not such as to require the services of two counsel to achieve justice. Whilst it may have been in the plaintiff’s interest to have two counsel, the matter was not such that I would certify that such expense be allowed on the standard basis assessment between the plaintiff and the defendant.

Costs of adjournment

 

As to which party was to account for the costs of the adjournment, his Honour stated:

[11] The matter was commenced by a claim and statement of claim on 22 April 2013. The defendant’s notice of intention to defend and defence was filed on 31 May and the plaintiff’s statement of loss and damages was served on 20 June 2013. The matter was entered for trial on 21 November 2013 and the first trial date allocation was made on 12 May. That was vacated due to a need for investigation of the plaintiff’s lumber spine and hip symptoms, which developed from in about December 2014 after the statement of loss and damage. A new trial of 7 November 2016 was set on 22 April 2016. That of course was some time after Dr Peereboom’s surgery on the plaintiff’s ankle which was performed on 31 August 2015.

[12] I note on 23 March 2015, the plaintiff’s solicitor had written to the defendant’s solicitor advising that Dr Peereboom had suggested an arthroscopy (see para 2 of the affidavit of Adrian Lamb filed by leave on 7 November 2016). So too, on 15 June 2015, the defendant’s solicitor disclosed to the plaintiff general practitioner records of the plaintiff’s doctor which referred to Dr Peereboom being involved in the plaintiff’s care and making reference to his wanting to perform a “scope” or a “guided local anaesthetic injection”.

[14] … the plaintiff and/or her legal advisors did not specifically explain or advise the defendant that in fact an injection of local anaesthetic had been done by Dr Peereboom, or that on 19 March 2015.

[19] … rule 548 of the UCPR requires the plaintiff’s statement of loss and damage to identify documents including, inter alia, hospital and medical reports and accounts. Importantly r 549(2) provides:

 “If there is a significant change in information given in the Statement of Loss and Damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the Statement.”

[20] In this case the trial date of 7 November 2016 was set, as I have said, on 22 April 2016 well after Dr Peereboom’s infection of March 2015 or surgery of 31 August and well after his being told by the plaintiff of the information I have set out in his reports of March, August and December 2015 and, necessarily, after he had given her advice as therein set out.

[21] There can be no doubt that the plaintiff was under a clear obligation to advise the defendant of the fact and outcome of that surgery in a supplementary Statement of Loss and Damage as required by r. 549. That is especially so in circumstances where I have found, consistent with Dr Peereboom’s reports, that the surgery did in fact have a significant ameliorating effect on her condition and so on her damages. Even if that were not so as the plaintiff asserted, the fact that such surgery had been performed and was not successful, would in my view constitute a significant change in information, requiring details of that unsuccessful surgery to have been advised to the defendant.

[22] Not to have disclosed it until a late stage, as I shall shortly come to, in my view was a breach of the obligations the plaintiff took upon herself when she commenced proceedings, having regard to the overall philosophy of the rules set in r 5, and the particular provisions of the Uniform Civil Procedure Rules relating to actions for personal injury.

 His Honour, therefore, ordered that the plaintiff pay the defendant’s costs of the adjournment. The plaintiff’s application for certification for two counsel was dismissed.

 

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories