RYAN v THE HEALTH ADMINISTRATION CORPORATION [1995] NSWCA 402

RYAN v THE HEALTH ADMINISTRATION CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and GILES AJA 23 March 1995, 23 May 1995

PERSONAL INJURIES — EMPLOYER DUTY TO PROVIDE PROPER SYSTEM OF WORK — CONTRIBUTORY NEGLIGENCE

PERSONAL INJURIES — EMPLOYER DUTY TO PROVIDE PROPER SYSTEM OF WORK — CONTRIBUTORY NEGLIGENCE — plaintiff trained nurse employed by defendant — in course of that employment plaintiff cared for a patient in patient's home — injured her back on two occasions while physically lifting patient — at trial, jury found for plaintiff but reduced damages by 50 per cent because of contributory negligence — plaintiff appealed on two issues: (1) whether there was evidence on which jury could find contributory negligence; (2) whether it could properly find plaintiff's responsibility to be 50 percent. Held: (1) it was open to the jury to find contributory negligence; in respect of both injuries suffered, the plaintiff had not used a mechanical lifter provided by her employer; a system of work is not defective merely because it leaves to a sufficiently competent employee a choice as to how a particular part of the work is to be carried out; in some cases, to do so may involve negligence — but not in this case; (2) the jury acted within the scope open to them in apportioning the plaintiff's responsibility for her injuries at 50 percent; such apportionment could not be said to be perverse.

Mahoney JA The plaintiff is and has been for some years a trained nurse. She has developed expertise in psychiatric and home nursing areas. As part of her duties as employee of the defendant Corporation or its predecessor, she gave care to patients in their own home.

On about 29 January 1982 she commenced caring for a Miss Jenkins. Miss Jenkins suffered from advanced multiple sclerosis and was more or less complete incapacitated and bed-ridden. She was a large women, some five feet six inches tall and her weight varied up to (at the relevant time) fourteen stone or more.