District Court New South Wales Medium Neutral Citation: Graham Cleary v Health Care Corporation Pty Ltd t/as Wollongong Private Hospital [2023] NSWDC 263 Hearing dates: 18 May 2023 Decision date: 21 July 2023 Jurisdiction: Civil Before: Acting Judge Ainslie-Wallace Decision: 1. Verdict for the plaintiff. 2. Parties directed to file short minute of order reflecting the assessment of damages. 3. Defendant to pay the plaintiff's costs of and incidental to the proceedings. Legislation Cited: Civil Liability Act 2002, ss 5B, 5B(1), 5D(1) Workers Compensation Act 1987, ss 36, 66 Cases Cited: Malec v JC Hutton [1990] HCA 20 Strong v Woolworths Ltd [2012] HCA 5 Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 Category: Principal judgment Parties: Graham Cleary (Plaintiff) Health Care Corporation Pty Ltd t/as Wollongong Private Hospital (Defendant) Representation: Counsel: A Campbell (Plaintiff) S Kettle (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Minter Ellison (Defendant) File Number(s): 2021/198827 Publication restriction: None Judgment 1. HER HONOUR: Graham Cleary was born on 18 July 1970. Exactly 50 years later, on his birthday, he says that as a result of the negligence of the Wollongong Private Hospital, the defendant, he was injured and as a result he is in constant pain and his capacity to work and live his life has been severely diminished. The Accident 1. On 17 July 2020 the plaintiff was admitted to the defendant hospital for an operation on his back address left leg pain. He had had a number of earlier operations and interventions to relieve back and right leg pain suggestive of a recurrent disc herniation at L4/5. In May 2020 he underwent an L4/5 posterior lumbar fusion which relieved his right leg symptoms but some weeks after the operation the plaintiff began to have left leg pain. Investigations revealed that a piece of bone, an osteophyte, had been dislodged during the disc fusion operation and was causing irritation to the nerve and pain in the plaintiff's left leg. 2. The operation on 17 July 2020 was to remove the osteophyte. 3. In recovery following the operation conducted very late in the evening of 17 July 2020, the plaintiff said he had no symptoms in either left or right leg. The following day, 18 July 2020, the plaintiff was taken from the Intensive Care Unit to radiology to have a CT scan. He was wheeled in his bed, the back of the bed raised to to ease discomfort in his back at the operation site. Two staff members attended him, one pushing the bed from the head, the other guiding the bed at the foot. 4. On the return visit from the CT scan to the ICU, the plaintiff said that as the bed approached the doors to the ICU and while the bed was moving at the pace it had been from the CT scan which was walking pace or slightly slower, the staff member at the foot of the bed let go of the bed in order to open the doors and, the end of bed not then being guided continued to move and struck the wall to the side of the doors. The plaintiff said the impact caused a shock through his body, and he slid down the bed, his feet came into contact with the footboard. He felt immediate pain and numbness which worsened over the next hour or so. 5. Despite subsequent non-surgical interventions, the plaintiff's left leg pain and numbness persisted and a further operation was conducted on 23 July 2020 when a piece of bone graft material was found sitting under the left L5 nerve as it left the foramen. The movement of the nerve over the graft caused the plaintiff exquisite pain and has permanently damaged the nerve leading to the plaintiff being significantly impaired. The plaintiff's history of back injury 1. The plaintiff is a truck driver. For some years he operated his own trucking company but a series of unfortunate events caused it to fail and the company was wound up. 2. In 2013 the plaintiff was employed in a fish market driving refrigerated trucks. In 2015 while lifting a heavy crate of fish, he sustained a back injury at L4/L5. He took two months off work, recovered and returned to full time work. 3. In 2016 he started work as a truck driver with Gary Croft Transport. The plaintiff said he enjoyed this work, it was easier than his previous work at the fish market, did not involve heavy lifting and he was being paid more that he had before in other jobs. 4. On 9 August 2017 while sitting in the truck, he reached awkwardly and injured his back. He said he felt pain in his back and right leg. He was admitted to hospital where he remained for a week before being discharged with a plan to have physiotherapy and analgesia. 5. An MRI performed in October 2017 revealed some desiccation of the L4/5 disc although there was no compromise of the nerve. His condition was treated conservatively and he had a steroid injection into the L4/5 site. In November 2017 the plaintiff began to experience right sided sciatic type pain. An MRI performed at that time showed a small to moderate disc bulge at L4/5 but no "high grade nerve root impingement". Further conservative treatment was recommended. 6. In February 2018 the plaintiff was still experiencing pain in his back and right leg. Nerve conduction studies showed a "mild active denervation in bilateral L4/5 supplied muscles". In March 2018 he was eventually described as having a shallow disc bulge with lumbar nerve root compression. 7. On 10 May 2018, the plaintiff underwent the first of a number of operations, this one being a microdiscectomy which alleviated his symptoms and the medical notes report that in August 2018 the plaintiff said that his pain had been reduced by 50% and he had reduced the amount of analgesia he was taking. The plaintiff returned to his previous work on a restricted basis and was working towards a full return to work. 8. Thinking that he was sufficiently recovered, the plaintiff drove to Canberra from his home in the Wollongong area and experienced an exacerbation of his back and leg symptoms. 9. His treating neurologist considered the reported symptoms on the right side suggested the L5 nerve distribution. Tests conducted in December 2018 suggested a recurrent disc herniation at L4/5. 10. On 10 January 2019 a second microdiscectomy was performed which did not provide any immediate relief of the plaintiff's symptoms which were then right sided leg pain and numbness. In May 2019, having had no relief from his symptoms, a further test revealed that the plaintiff had a disc bulge at L4/5 with fibrosis surrounding the L5 nerve root. 11. In February 2020 the plaintiff consulted neurologist, Dr Thomas Pitham who eventually recommended a L4/5 disc fusion which was performed on 12 May 2020. The plaintiff said that this operation gave him immediate relief from his right sided leg pain and back symptoms. 12. However, towards the end of May 2020, the plaintiff said he noticed left sided pain in his leg when he bent sideways. He had pain and numbness running down his back, through his left buttock and down his left leg stopping at the knee. A CT scan showed a piece of broken bone sitting to the left of the L4 vertebra. 13. Dr Pitham said that the bone was most likely broken off when he was fixing the two vertebra during the fusion and the bone was causing inflammation around the nerve causing left sided symptoms. Despite a course of steroid injections and a left L4 nerve root injection the plaintiff's symptoms were not alleviated. Dr Pitham recommended a further operation to decompress the nerve at L4/5 and revise the fusion. 14. Late in the evening of the 17 July 2020, Dr Pitham conducted this operation in which he slid back the cage previously inserted during the fusion operation to allow him to decompress the L4 nerve along its length. He then repositioned the cage. 15. The plaintiff said that when he awoke in recovery, he had no left sided pain or numbness. The next morning, 18 July 2020, after the plaintiff had been transferred to ICU he was seen by Dr Pitham and when he stood beside the bed first on one leg and then the other, he again said that he had no pain in either right or left leg. Dr Pitham described he and the plaintiff having a "high five moment" in celebration of the plaintiff not having any pain. 16. On the afternoon of 18 July 2020 the plaintiff was taken from the ICU to the radiology department to have a further CT scan. 17. It was on the return trip from radiology when the bed he was in collided with the wall in the hospital corridor causing the plaintiff immediate pain. Within two hours, the plaintiff said that he experienced left sided pain, numbness and altered sensation down from his left buttock through his left leg and into his toes. He said that this pain and numbness was "new" and only occurred after the bed collided with the hospital wall. 18. A guided left L5 nerve block having been unsuccessful to address his left leg symptoms, on 23 July 2020, the plaintiff had further surgery to decompress the left L5 nerve. In that surgery, Dr Pitham found a piece of bone graft sitting under the L5 nerve where it left the foramen and moved over the L5 pedicle. Dr Pitham removed the bone graft fragment. 19. The bone graft fragment while removed had nonetheless permanently damaged the L5 nerve. The plaintiff continues to experience pain, numbness and altered sensation in his left leg. 20. Nerve conduction studies in August 2020 showed evidence of severe and highly active denervation of the L4/5 supplied muscles. 21. Despite a long period of inpatient rehabilitation including physiotherapy and hydrotherapy and attendance at a pain clinic, the plaintiff has not experienced any relief from his left leg and back symptoms from which he continues to suffer. What caused or contributed to the plaintiff's left sided symptoms? 1. The plaintiff sought the expert opinion of Dr Noel Dan and the defendant obtained an opinion from Professor Marcus Stoodley. They were asked to consider the mechanism of the accident and the presence of the piece of bone graft under the L5 nerve where it was found by Dr Pitham and were asked to comment on the plaintiff's left sided symptoms. 2. Both experts agreed that the nerve impingement and damage to the L5 nerve was caused by the nerve being stretched over the bone graft fragment. This too was the opinion of Dr Pitham. How and when was the bone graft fragment expelled? 1. Dr Pitham said, and it was generally agreed the bone graft fragment most probably came from the L4 disc underneath the L5 nerve root and was ejected into the space under the L5 nerve. 2. What was in contention was when and how was the bone fragment expelled from the vertebral disc space coming to rest underneath the L5 nerve. 3. It is the plaintiff's case that the force of the impact of the bed and the wall on the return from the CT scan on 18 July 2020 caused the graft fragment to be expelled from the vertebra and to come to rest on the outer vertebral surface under the L5 nerve. 4. When Dr Pitham conducted the spinal fusion in May 2020, after removing the contents of the disc, bone graft fragments were inserted into the space and on the outer "gutters" of the vertebra which, over time, will harden to bone and provide structure and stability for the vertebra. It was agreed that it takes some months for the graft material to harden into bone. Dr Dan said that the graft material not being "live" bone is less resistant to forces on the vertebra. Did the impact with the wall cause the fragment to be dislodged? 1. Turning then to the plaintiff's contention that the bone fragment was extruded from the vertebra through the force of the bed colliding with the wall, the plaintiff said that before the bed collided with the wall, the bed had been moving at a walking pace. 2. The plaintiff described the collision in these terms: tx page 42 I slid down the bed, I tried to brace myself, I seen it coming, and we hit the wall, bang. I slid down the bed and my feet hit the end of the bed and I tried to brace myself and my legs as well to take an impact, but my legs are weak, just, I wasn't even 14 hours out of surgery. So, a big bang, I whiplashed my back and a big crack, I felt a big crack in the base of me spine, and I fell back on the bed and I felt like a – a G force shudder shock all the way up my body. … I felt a shudder up my body, pain in my back. My legs were sore after it. 1. The plaintiff continued and said that immediately he felt pain in his back at the site of the surgery. He said when asked about his leg symptoms tx page 43: … it had come from my spine into my glute. There was nerve pain. I felt it on my right side. So, I don't understand where it was coming from. It went all the way down the outside of my leg, through my – all the way to my foot, crossed the top of my foot and my toes, and I'd get some pain coming on the bottom of my right foot as well, at the same time. Q. Bottom of A. Left foot, sorry, not right, my left foot. Q. Which side of the bottom of the foot did you A. On the foot – on the right hand side of my – of my left foot. Q. On – on the instep? A. Inside instep, yeah. Q. Had you ever felt those sorts of symptoms in your left leg before? A. Never. 1. Two staff members were in charge of moving the plaintiff from the ICU to the CT scan and back. Mr Denis Egidis, a nurse, was pushing the bed from the head and Ms Gaviria the hospital Operations Manager was guiding it from the foot. On the return trip from the CT scan, when they approached the door to the ICU, in order to enter a security key had to be swiped and the doors opened manually. 2. On this day one of the doors although able to opened, was not held open by the magnet on the wall designed for that purposed, in the result Ms Gaviria had to hold it open to allow the bed through. On the return to the ICU from the CT scan and as the bed approached where the key code needed to be swiped, Mr Egidis lost control of the bed and it collided with the wall. Mr Edigis said that the bed had not stopped before it hit the wall although he said it was slowing down. 3. Ms Gaviria agreed that to swipe the access card and hold the door open she needed to let go of the bed. She accepted that the bed had not stopped when she went to open the door but was still moving and while she was opening the doors she could not see what was going on behind her. It is important to observe that Ms Gaviria was adamant that the bed did not collide with the wall on the return journey from the CT scan but said that when leaving the ICU the door closed against the bed. This was not the evidence of either the plaintiff or Mr Egidis. While Ms Gaviria was clearly giving evidence in accordance with her recollection, I am satisfied that the bed hit the wall as Mr Edigis and the plaintiff said that is on the return trip to ICU and that the bed hit the wall. 4. Mr Egidis denied that the bed hit the wall with any force and described it as a minor impact, a touch. 5. Mr Egidis said that after the bed collided with the wall he noticed the plaintiff looking as if he was in discomfort and then added : "… I noticed from him being in certain discomfort, but not more usual than other discomforts that I have seen before" adding that is, compared with other patients. He agreed that the plaintiff seemed to be in a "bit of discomfort". He did not recall the plaintiff saying anything to him before the bed hit the wall or afterwards although he recalled saying "sorry" to the plaintiff. 6. Equally when asked about seeing the plaintiff on his return to the ward Mr Egidis was asked: Q. When you came back and saw Mr Cleary after his visit to the CT scanner, to you did he appear to be any additional discomfort? A. He voiced himself more discomfort, but it didn't appear to me from my judgement. 1. It is not clear why the witness felt it necessary to compare the discomfort that Mr Egidis saw in the plaintiff with that he had seen in other patients. In any event, the patient notes record that on his return to the ICU, the plaintiff complained about increased pain and his patient-controlled analgesia was increased. The notes show that the plaintiff complained that the pain was not addressed even with the increased analgesia. It was not suggested in the case and there is nothing in the notes which suggest that his complaints of pain were not genuine. 2. While the contact between the bed and the wall may have appeared to Mr Egidis to have been minor, there is no reason not to accept the plaintiff's account of the incident and of the effect of the collision on his body and his sensation of immediate pain and discomfort. His evidence is not improbable and it was not suggested that it should be rejected. 3. The defendant contended that the force of the collision between the bed and wall was minor and would not have caused the bone graft material to be expelled from the site of the disc fusion. 4. There was no expert evidence about the forces generated by an impact between the ICU hospital bed and the wall. It was suggested that the bed itself would weigh about 150kg plus whatever equipment was attached to the bed plus the weight of the plaintiff himself. 5. Both the plaintiff and Mr Egidis say that the bed was moving at walking pace or perhaps slowing a little when it hit the wall. 6. Absent any evidence of the forces generated by the bed striking the wall at walking pace, I am left to consider the effect of the impact of the collision based on the plaintiff's evidence about it. 7. The question is, could the impact at that pace have accounted for the extrusion of the bone graft material. 8. Professor Stoodley, while accepting that there was no evidence as to what forces might be generated by the described collision, found it difficult to see how the collision could generate sufficient force to cause the bone graft fragment to be extruded from the vertebral space where it was otherwise secure and able to withstand normal physiological activities such as walking. 9. He said that if it did, then the bone fragments must have been so precariously located such that a minor force would cause it to be extruded and thus it would have been extruded by ordinary forces operating on the spine in everyday life such as walking and climbing stairs. He said: - if the forces involved here, as I am picturing them, resulted in that - that compression force sufficient to push the bone out, then that bone fragment must have been so precariously placed that that was about to happen anyway, that as soon as he stood up, or moved or walked up and down stairs, or had a jolt, or in a car that stopped suddenly, anything like that would have had at least as much force going through the bones and it would have - it would have happened anyway. 1. As to his view that if the graft was so precariously placed such that ordinary weight bearing would have dislodged it, Professor Stoodley said: In the normal setting, yes. But if there was, as I am suggesting, a precariously placed piece of bone graft, as there must have been to - in order for it to become expelled from the intervertebral space with what seems like relatively small forces - then in that setting, then the weight bearing walking - going up and down the stairs, bending over - these kinds of forces would be perfectly accurate to displaced bone graft. 1. Both experts thought that a small force of impact was less likely to cause the bone graft to be dislodged, although Dr Dan felt when told that the collision was between the corner of the bed and the wall would involve rotary forces to the spine which would be more likely to cause the dislodgment because the angulation of the forces would pinch the graft which was then relatively fragile and could dislodge it. Professor Stoodley maintained his view that a minor collision, even if angled, would not cause the graft to become dislodged if it was not precariously positioned. 2. Dr Pitham agreed that a minor bump between the bed and the wall was less likely to move any of the bone graft material out of the vertebral space than a significant impact. 3. Both Dr Dan and Professor Stoodley thought that the bone graft fragment had been expelled from the L4 disc when Dr Pitham revised the fusion site to remove the osteophyte on 17 July 2020. Dr Pitham did not agree and noted that the revision took place well away from the L5 nerve root. The plaintiff's complaints of pain 1. It was undisputed that the plaintiff made immediate complaints of pain at the time the bed struck the wall. It was also undisputed that the plaintiff characterised the pain he experienced after the collision with the wall as being "new" compared with the other pain he had experienced. 2. The nursing and other notes document his complaints of increased left leg pain and numbness following the trip to the CT scan. Dr Pitham's note of 18 July 2020 too notes the plaintiff's complaint of increase pain since being taken to the CT scan. 3. Dr Pitham's evidence was that the plaintiff's previous pain had been of right sided leg pain that had not resolved despite previous interventions some of which gave good response but which didn't last. The pain, he said was from the right L5 nerve root. 4. Dr Pitham concluded that the bone graft fragment was dislodged and found its way under the nerve and damaged it because of the collision of the bed and the wall. He said he came to this view for two reasons: 5. First, the plaintiff's complaints of pain were suggestive that he did not have substantial L5 pain before the collision of the bed and the wall. 6. Secondly he said that "… people don't just magically develop a nerve root injury when they hit something. … But what makes the difference in this case is the nerve, as it leaves the spine, it runs over a smooth piece of bone that we call the pedicle, and it slides in and out over that bone, like a rope does on a pulley. And that happens when you change your position". 1. He continued and said that having seen the graft fragment, however it came to be there, it was sharp and caused an acute injury to the nerve which then led to the plaintiff's problems. He said that to injure the nerve in the way the plaintiff's L5 nerve had been, it required a significant amount of force because injuries like this one do not occur because a piece of bone graft touched the nerve. 2. He also referred to the plaintiff's EMG studies, which prior to the collision with the wall had "… always be quiet" which he said meant that while there was evidence of previous injury, there was nothing ongoing. However, he said that after 18 July 2020 when another EMG was conducted, the specialist called him to discuss how abnormal the results were and to indicate that he was very concerned that there was an active problem. He said: In other words that we needed to look again to see, is there something pressing on the nerve, is there something that we have missed, because there is a bad injury to the nerve going on at the moment. 1. The plaintiff was reviewed by a physiotherapist on the morning of 18 July 2020, after the surgery and before the collision. The report notes that the plaintiff complained of left lower limb pain which was described as not as strong as before the operation and numbness in his left calf to his foot. Dr Pitham was asked whether this indicated L5 involvement. Dr Pitham said that the numbness would be "in the pattern of the L5 dermatome" and said when asked whether this indicated "ongoing problems" before the collision of the bed and the wall said: tx 252 Yes. Although, it's really important to note that if the same thing that caused the numbness is the thing that caused the injury to his L5 nerve that he now has, then he would've had both the numbness, plus the pain, plus or minus some weakness, at that time of assessment. And he has only some mild L5 sensation changes, which as I said to you, are incredibly unreliable. 1. He added he would have had the pain "that he then complained of so terribly. They would have occurred at the same time." 2. Both Dr Dan and Professor Stoodley agreed that the plaintiff's complaints of pain and numbness following the collision were "new". Dr Dan in particular pointed to the plaintiff's complaints of pain and numbness down to the left foot and to the left big toe which he said was typical of the L5 nerve dermatome. 3. Dr Pitham said that the report of the physiotherapist did not show the plaintiff complaining about pain in a "new location that he didn't indicate previously". 4. Professor Stoodley considered that the effects of the narcotic analgesia delivered during the operation and to the plaintiff afterwards may have "masked" the pain of the graft fragment impinging on the L5 nerve before the collision with the wall. However he said that the analgesia would not have removed the pain of the nerve impingement nor would the analgesia affect the plaintiff's feeling of numbness in the legs. 5. Professor Stoodley however agreed that had the fragment been impinging the nerve when the plaintiff was being assessed by the physiotherapist it would likely although not necessarily have caused the plaintiff pain. 6. Dr Dan said that the physiotherapy assessment would have accelerated the appearance of the symptoms if the nerve was then impinged because any movement would cause the nerve to be stretched over the pedicle. Dr Stoodley while not agreeing that the physiotherapy assessment would have the effect of stretching the nerve he agreed that the plaintiff in getting in and out of bed, would have created symptoms if the nerve was impinged. 7. Dr Dan said: tx 301 I - I think that the bone, which is used in a graft is dead bone. It doesn't have the other factors which are there when the bone is intact and it therefore has less resistance to forces. I think that it's improbable that it was displaced earlier on before the sudden acute pain came on. And I - I think that if it was, there would've been some pain there and the incident would've exacerbated an existing pain. But I find it difficult to accept that it would've caused a new pain 1. While the experts considered the description of the impact between the wall and the plaintiff's bed to be a minor collision, I accept the plaintiff's description of its affect on him and his complaints of immediate pain following that. 2. Further, the absence of complaints of pain associated with the L5 dermatome before the collision and the general agreement that when the graft impinged on the nerve it would have caused significant pain, even if to some extent that pain might be masked by analgesia, persuades me that it is not likely that the bone graft fragment escaped from the vertebra during the operation on 17 July and was resting on or near the L5 nerve root. 3. I find that the bone graft most probably was dislodged and came to rest under the L5 nerve root at the time that the bed collided with the wall and that when the nerve was pulled over the pedicle it was significantly and irreparably damaged by the bone graft fragment. Would the fragment have been dislodged in normal movement in any event? 1. Professor Stoodley speculated that if the bone fragment was dislodged by what he imagined was a small force generated by the collision with the wall, then the graft material was so precariously placed it would have been displaced by the plaintiff moving about ordinarily. However, he agreed if the effect of the collision was as described by the plaintiff it would be a "significant" collision rather than the small force he imagined was generated by the collision between the bed and the wall. He had not seen bone graft material displaced by "minor" forces on the spine. 2. As I have said, there was no evidence of what the forces were at the point of impact and I have accepted the plaintiff's evidence of the effect of the impact on him. I do not accept that it was "small" or "minor" in its effect and there is no evidence that the graft material was otherwise precariously placed. 3. I do not find that the bone graft was precariously placed such that any normal activity undertaken by the plaintiff such as walking around or walking upstairs would have caused it to dislodge. Negligence 1. Before moving to consider whether the defendant was negligent in the way for which the plaintiff contends, it is first necessary to identify the relevant risk of harm or "… what … set of circumstances gave rise to the potential for harm for which the plaintiff seeks damages." (Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 at [106]) 2. Here the risk of harm is that in moving patients in beds within a hospital requires care to be taken to avoid the bed coming into contact with fixed objects where the effect of the collision is likely to cause harm. 3. In order to find that the defendant was negligent, it is necessary to be satisfied of the matters to which s5B of the Civil Liability Act 2002 refer. Section 5B(1) provides: [a] person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. Was the risk of harm to the plaintiff foreseeable? 1. I find that the plaintiff being moved from the ICU to another area of the hospital, mere hours after significant back surgery and who was in receipt of significant analgesia was vulnerable. It is not far-fetched or fanciful to conclude that a person in his position would be at risk of harm if the bed collided with the wall. Was the risk of injury not insignificant? 1. There is no doubt that the particular injury suffered by the plaintiff when the bed hit the wall was unusual however it is quite foreseeable that a patient having very recently had back surgery would be significantly injured through the bed colliding with the wall. In the circumstances would a reasonable person have taken precautions? 1. In assessing this aspect it is necessary to consider the provision of 5B(2) which says: In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. The plaintiff had the benefit of an expert safety report, the contents of which were unchallenged. That expert said that it was the obligation of both members of staff moving the plaintiff in a bed to maintain a safe environment during the journey. Both staff members understood from the outward journey to the CT scan that the door magnet was faulty and one side of the door needed to be held open to allow the bed to pass through the door way. On the return journey, Ms Gaviria instead of keeping one hand on the foot of the bed and the other to swipe the access card let go of the bed while it was still in motion. Nurse Egidis who was at the head of the bed and responsible for its movement did not bring the bed to a complete halt nor was there any communication between them as to Ms Gaviria letting go of the end of the bed and as a consequence Nurse Egidis lost control of the bed which collided with the wall. No attempt was made to prop open the door so that the bed could be safely manoeuvred through the door with both staff members having control of the bed nor was the bed brought to a complete stop before Ms Gaviria let go of her end of the bed. 2. Given the probability of harm to a physically vulnerable patient being taken from the ICU to another place in the hospital and the likely seriousness of that harm if it eventuated, the burden of taking precautions against the staff not being properly in control of the bed's movement were minor. 3. I am satisfied on the balance of probabilities that the defendant was negligent Causation 1. Section 5D(1) deals with causation and provides: (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). 1. In Strong v Woolworths Ltd [2012] HCA 5 at [18], the High Court held that the determination of the factual causation is a "statutory statement of the 'but for' test of causation". That is, was the defendant's negligence a necessary condition of the occurrence of the particular harm? 2. I am satisfied that it is more probable than not that the defendant's negligence caused or materially contributed to the plaintiff's injuries. It follows from the above findings that the most probable cause of the permanent damage to the plaintiff's L5 nerve was from the bone graft fragment being displaced from the L4 disc space when the bed collided with the wall and coming to rest under the L5 nerve which was damaged as the nerve was pulled across its sharp surface. 3. While s5D(1)(b) requires a consideration of whether it is appropriate for the scope of the defendant's negligence to extend to the harm caused, it was not argued that is was not appropriate and in any event I find it to be appropriate. The risk arose in the ordinary course of the movement of the patients within the defendant hospital and the plaintiff's injury occurred during one such movement. Damages Non economic loss 1. It was accepted that before the injury on 18 July, the plaintiff had significant problems with his back in relation to which he had many different types of interventions. The results were, as counsel for the plaintiff put it "underwhelming" until the disc fusion in May 2020 and the subsequent revision to remove the osteophyte on 17 July 2020. 2. However following his injury at work in August 2017, by October 2018 the plaintiff was working reduced hours at his previous job and hoping to return to full time work. His employer was supportive of him and had kept his position open. The plaintiff was keen to return to full time work. 3. Unfortunately a driving trip to Canberra in October 2018 exacerbated his back injury and he had further interventions with limited results ultimately resulting in the plaintiff undergoing the disc fusion conducted by Dr Pitham. The plaintiff said that he wanted to have the fusion because wanted to return to work. His employer, Mr Croft had kept his job open for him. 4. The plaintiff said that after the fusion, he could walk around get up from a sitting position in a chair, he had no right leg symptoms. He was able to assist around the house, doing the washing, hanging clothes, cooking meals, making beds and driving the children to school. He said he was physically better than he had been before the fusion. 5. After the osteophyte was removed in the operation on 17 July 2020, the plaintiff said that he had no pain in his right leg or left leg and in the physiotherapy session of 18 July, was able to stand on each leg being supported by the medical staff. 6. After the collision between the wall and the hospital bed, the plaintiff said he experienced "new pain" from his spine into his buttock and down his left leg into the instep of his foot. Despite the operation to remove the fragment of bone graft on 23 July 2020, the plaintiff said that he continues to experience that pain. 7. Following the plaintiff's discharge from hospital on 14 August 2020 he spent 17 days in inpatient rehabilitation which was followed by outpatient therapy in October. In June 2021 the plaintiff engaged in a pain management program and again in October 2022. A trial with a spinal cord stimulator was unsuccessful. 8. While it is apparent that the plaintiff's back would have remained fragile, I am satisfied that but for the incident, following the fusion and subsequent removal of the osteophyte, he would probably have continued to have relief from both his right and left leg symptoms. 9. At the time of the hearing the plaintiff was using crutches to move around. He said that the more he moves around the worse the pain becomes. He loses feeling in his left leg from the knee down, his left foot swells and reddens and that extends up his left leg. He has continuing pain in his back and nerve pain down his left leg and numbness in his foot. Sitting and moving makes the pain worse. 10. His right leg gives him no trouble and he said that it takes his entire weight. Using the crutches has caused a tear in his rotator cuff. He has other physical difficulties associated with the injury. He needs to shower sitting down and needs special equipment in the lavatory. 11. He described himself as being very depressed because he cannot play with the children or spend time with them outside the house. He said that he does not leave the house although shortly before the hearing he and his family went to a shopping mall for the first time in two years and he hired a motorised scooter with which to move around. 12. The plaintiff said that he is limited in what he can do around the house, mainly folding washing and turning on the taps when the children are to shower. All of the other daily chores are done by his wife. He has from time to time been in receipt of assistance through his workers compensation insurer and at the time of the collision was receiving two hours assistance in the house per fortnight plus lawn mowing. He can drive but for very short distances. 13. It is clear that after the disc fusion conducted by Dr Pitham, the plaintiff had significant recovery from his right leg pain and was able as he described to assist around the house and care for the children. The effect of the damage to the left L5 nerve root has left him significantly disabled, depressed and in constant pain. Psychiatric evidence 1. A conclave of psychiatric experts agreed that, as a result of the incident in the hospital, the plaintiff has a chronic severe adjustment disorder with features of depressed mood. It is likely that he had some underlying depressive anxiety symptoms after his back injury in 2017 but that his mood, depression and anxiety worsened after the 18 July 2020 incident. His prognosis is guarded to poor because of the persisting pain and physical disabilities from which he still suffers. 2. The plaintiff received some assistance from a psychologist which both experts regarded as appropriate. The plaintiff's expert believes that he would benefit from seeing a psychiatrist and having his present medication increased. They both agree that the claimed expenses of psychiatric or psychological treatment in the future are reasonable and directly related to the incident. 3. The experts recommend that the plaintiff have at least six months of supported psychological treatment at a cost of $300 per session. Dr Bertucen who reported for the plaintiff said that the periodical input of a psychiatrist to monitor mood and medication would be reasonable. 4. The plaintiff was a relatively young man of 50 when he was injured, he is presently 53. He has a young family. His evidence persuades that his injuries are such that there is little he can do to interact with his children or assist his wife in the house or otherwise enjoy his life as he had in the past. 5. The assessment of non-economic loss here is governed by the Civil Liability Act which requires the plaintiff's circumstances to be assessed as a percentage of a most extreme case. Given the undoubted impact of the injury on the plaintiff's life in all its aspects, physically and emotionally, I assess his non-economic loss at 35% of a most extreme case. Economic loss 1. At the time of the incident on 18 July 2020 the plaintiff was in receipt of workers compensation payments of $807 per week which commenced following the injury to his back in 2017. The weekly compensation payment was assessed on a calculation of the plaintiff's average weekly earnings over the previous 12 month period, being $1,376.85 net per week. 2. There is no suggestion in the evidence that the plaintiff's present physical condition will improve in the future. It is apparent that he has no present capacity to return to work, nor probably in the future. 3. The defendant argued that the plaintiff's workers compensation insurer had assessed him as having no earning capacity when assessing the amount of weekly payments resulting from the August 2017 injury and the defendant argued that as a result of the incident in the hospital the plaintiff suffered no loss of earning capacity because he had none. 4. Before the exacerbation of his back injury in November 2018, the plaintiff was working 6 hours each day, three days per week for Croft Transport. It was anticipated that within two weeks he would try working for eight hours per day. The overwhelming evidence is that he was keen to return to work and his employer was supportive of him to continue to work. 5. It is apparent that the only form of work suited to the plaintiff's abilities was driving and other types of employment were not considered feasible. 6. Whether the plaintiff would have been able to sustain full time work into the future is not able to be determined but I am not persuaded that he had no earning capacity before the incident on 18 July. 7. Given the pain relief achieved after the fusion operation and the removal of the osteophyte it is probable that he would have returned to part time work. 8. The defendant further argued that the workers compensation assessment of the plaintiff's average weekly earnings was an inappropriate basis on which to assess the plaintiff's loss of earning capacity because but for the 12 months that he worked for Croft Transport, his average earnings were less. The plaintiff's evidence was that he was happy to be working at Croft Transport because the work was lighter and he was earning more money that he had before. It was clear that Mr Croft was supportive of him and kept a position open for him after he hurt his back in 2017. While taking his average weekly earnings for a period greater than 12 months before the accident might have reduced the figure of his pre-injury average weekly earnings, I am not persuaded it is appropriate and I accept the figure of $1,376 net as a reflection of his pre-injury earnings. 9. I find that had the plaintiff returned to part time work he would have earned about $800 net per week. 10. The injury sustained by the plaintiff on 18 July 2020 is separate from the injury in August 2017 for which workers compensation is paid to him and continues to be paid at $807 per week. 11. The weekly amount in relation to this injury that represents the plaintiff's past economic loss, $800.00, must be adjusted to take into account the continued payment to the plaintiff of workers compensation payments and to avoid the plaintiff being, in effect, compensated twice for the same loss. 12. Counsel for the plaintiff submitted, and it was unchallenged by the defendant that the somewhat labyrinthine method by which that "double compensation" is avoided is as follows: 13. But for the accident, had the plaintiff returned to work and earned $800 per week he would have received $800 plus workers compensation payments calculated at 80% of the difference between the pre-injury average weekly earnings less current weekly earning – in this case $1,376.85 less $800, being $461.48. Thus had the plaintiff returned to work and earned $800 per week, that sum, together with $461 in compensation payments would total $1,261.48. However, the plaintiff is presently receiving $807 per week in compensation and if that amount is deducted from $1,261 it leaves a figure of $454.48 per week which represents his net weekly loss of income, for which the defendant is liable to compensate him. 14. The plaintiff's calculations of past economic loss contemplate a return to work by the plaintiff on 30 September 2020 although in submissions a suggestion that a period of about 6 months recuperation from the 18 July 2020 was reasonable. Thus, the plaintiff's past economic loss is calculated from 30 December 2020 to the date of hearing, a period of 122.5 weeks. 15. Future economic loss is to be assessed in the same way, that is a net loss of $454 per week until the plaintiff turns 68. The plaintiff submitted that the plaintiff would have worked until he was 70 and there should be a further period for which the plaintiff would receive damages for economic loss. Given the history of the difficulties with the plaintiff's lower back, I am not persuaded that he would have worked until aged 70. Compensation for future economic loss then will be calculated until he turns 68 being 15 years. Superannuation 1. Both past and future superannuation is claimed calculated on $800 net per week on the basis that the plaintiff's past and future workers compensation payments make no provision for superannuation. Out of pocket expenses 1. The plaintiff's workers compensation will meet all future out of pocket medical expenses. The plaintiff sought a figure of $30,000 by way of a "buffer" to provide for a medical expense not otherwise covered by the insurer. It is possible that in the future the plaintiff may have a medical expense not otherwise met by the insurer, such as ongoing psychiatric or psychological support or for some other expense and a "buffer" of $30,000 is claimed. This figure does not seem to be unreasonable and I will make that allowance. Domestic assistance 1. Occupational therapy assessments by experts engaged by both the plaintiff and the defendant recommend the provision of domestic assistance to the plaintiff. At the date of the incident, the plaintiff was receiving 2 hours of commercial domestic assistance each fortnight together with occasional lawn mowing and gardening for 1 hour. 2. The plaintiff's expert recommended that he receive 5 hours assistance each week as being directly related to his disabilities after the incident whereas the defendant's expert suggested 2 hours each week is necessary. 3. Both parties calculated the period of time over which domestic assistance in the past commenced from 17 September 2020 to date of hearing, 8 May 2023, which is 137.4 weeks. 4. There is no doubt that as a result of the injury on 18 July 2020, the plaintiff is virtually unable to do anything around the house or for his young family. While he can drive the children to school, he said he can only drive for very short distances. 5. At the time of the assessments, the plaintiff's wife was able to do some work from home which, no doubt left her free to attend to the domestic tasks around the house. During the hearing, Mrs Cleary obtained part time work as an accountant which requires her to leave the house at about 4pm each evening and return at about 9pm. It seems obvious then that the need for commercial assistance to the plaintiff is increased. 6. Domestic assistance in the past is to be assessed from 17 September 2020 to the date of the hearing a period of 137 weeks. The plaintiff sought provision for 8.5 hours each week, the defendant contended that 2 hours per week in addition to that already being provided to the plaintiff was appropriate. For the future, the plaintiff claims 5 hours of commercial assistance each week and the defendant again submitted 2 hours per week was reasonable. 7. Neither Sanja Zeman, the author of the Occupational Therapy Report relied on by the defendant nor that of Christine Eloff on which the plaintiff relied were the subject of cross examination or detailed submissions. 8. There is no doubt that the plaintiff was limited in how he could assist in the daily chores and childcare requirements after 17 August 2017, however his unchallenged evidence is clear that he was able to do much more then than he could after the 18 July 2020 accident from which point he has virtually no ability to attend to any tasks in the house or in relation to child care. 9. For the period from 17 September 2020 until the date of the hearing 8 May 2020, it was reasonable and appropriate for the plaintiff to receive 5 hours of assistance each week and that same level of assistance is reasonable and appropriate into the future. 10. The plaintiff also sought financial provision for equipment, such as bathing aids and a motorised scooter. A figure of $15,000 is sought and is supported by the Occupational Therapy reports. The plaintiff's potential entitlement pursuant to s66 of the Workers Compensation Act 1997 1. The plaintiff is entitled to but has not made a claim for lump sum compensation referable to his 2017 back injury. In that event, it is necessary to assess what that likely lump sum would be and deduct that from any award for general damages. The parties agreed that the likely s66 lump sum award would be $50,000 which will be deducted from the figure arrived at for general damages. 2. For the purposes of the calculation of damages I have adopted the following figures: * Weeks from 18 July 2020 to date of hearing 8 May 2023 - 146 * Weeks from plaintiff's likely return to work but for the accident, 30 December 2020 until 8 May 2023 - 122.5 * Years to Plaintiff's retirement at aged 68, 15 (5% multiplier 555) * Plaintiff's life expectancy, 32.32 years (5% multiplier 850.4) * Weeks from plaintiff's discharge from hospital to home care to date of hearing, 17 September 2020 to 8 May 2023 – 137.4 1. Thus the plaintiff is entitled to damages in the sum of $833,873.00 being made up as follows: * Non economic loss – 35% of a most extreme case $246,500 * Past economic loss - $454 x 122,4 weeks $55,615 * Future economic loss -$454 x 555 – 15% $214,174 * Past Superannuation - $800 x 122.4 x 0.11 $10,780 * Future Superannuation - $800 x 555 x .14 -15% $52,836 * Past Domestic Assistance – 5 x $35 x 137.4 $24,045 * Future Domestic Assistance – 5 x $65 x 850.4 -15% $234,923 * Future Medical Expenses (buffer) $30,000 * Equipment $15,000 * Deduction for likely s66 lump sum -$50,000 1. The plaintiff submitted that a reduction of 30% to the damages awarded to the plaintiff should be made in recognition that he may have in the future become disabled and unable to work notwithstanding the defendant's negligence. The plaintiff's back was "fragile" as I have found it and while, in my view, but for the defendant's negligence he would have been able to return to part time work as he proposed, the suggested reduction in damages addresses the chance that he may not have and may not have been able to participate and enjoy his life as he had before the defendant's negligence. (Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638) 2. The amount of the plaintiff's damages will therefore be reduced by 30% leaving the ultimate award of damages at $583,711. 3. There will be a verdict for the plaintiff. I will direct the parties to file a short minute of order reflecting the assessment of damages. 4. The defendant is to pay the plaintiff's costs of and incidental to the proceedings. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2023