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. On 21 June 1982, in the course of caring for her, the plaintiff injured her back. She was off work for some seven weeks. She returned to work thereafter and resumed her care of Miss Jenkins. On 11 July 1983, in the course of caring for her, she again injured her back. The cumulative effect of her two injuries has caused her significant disability and pain. The plaintiff has sued the defendant, representing her employer, on the ground that the employer did not have or maintain an appropriate system of work for her and that the employer's omission caused her injuries. The plaintiff's claim was tried by Wood J and a jury. On 2 November 1989 the jury returned a verdict for the plaintiff, held her to have been guilty of contributory negligence, assessed her responsibility for her injuries at fifty per cent and gave a verdict for damages of $266,419.89. After adjustments and the reduction because of contributory negligence, judgment was entered for the plaintiff for $132,400. The plaintiff has appealed to this Court against that judgment. 1. THE ISSUES: 2 UNREPORTED JUDGMENTS Mr Toomey QC for the appellant-plaintiff pressed only two issues: whether there was evidence on which the jury could find contributory negligence; and (if it could) whether on the evidence it could properly find the plaintiff's responsibility to be fifty per cent. Mr Toomey directed the bulk of his argument to the first issue. The second issue was also pressed, but in the circumstances, was described as "'a fall back position". For the reasons to which I shall refer that was, in my opinion, a correct assessment of the two issues. 2. THE COURSE OF THE PROCEEDING BEFORE AND AT TRIAL: There are a number of matters to which it is necessary to refer in order that the nature of the case at the trial, the course of the procedure, and the submissions here made can be appreciated. (a) PLEADING: The plaintiff suffered two traumas, the first on 21 June 1982 and the second on 11 July 1983. Each of them, as the parties accept, gave rise or could give rise to a separate cause of action. They were, I think, pleaded as such. However, the claim in respect of both of them made in the statement of claim was for a single award of damages; the plaintiff's claim was, in form and at the trial, a claim for the totality of the damages caused to her by the cumulative effect of the two traumas. That, of course, was a sensible and realistic approach. However, it is accepted that each of the incidents was or could have been the basis of a separate claim and this, Mr Cassidy QC for the defendant-respondent has submitted, leads to a complication in the assessment of the effect of the plaintiff's appeal. To this I shall come subsequently. (b) In the course of the summing-up, the judge did not invite any distinction between the two causes of action. By agreement or without dissent he put to the jury specific questions for their consideration and determination. Those questions did not distinguish between the two injuries; they invited the jury to consider whether there was contributory negligence and what was the plaintiff's share of responsibility, each by a single question. In principle, it would no doubt have been proper for questions to be asked in respect of each incident to determine whether each of them was affected by contributory negligence and, if so, what was the plaintiffs responsibility. It has not been suggested that the trial has miscarried because of this. However, to the extent to which I shall refer, the course taken adds a complication in the present appeal. (c) Wood J summed up to the jury at some length. No objection was taken to the terms of the summing-up. In particular, it was not submitted that there was no evidence to go to the jury to support a finding of contributory negligence nor was it submitted that there was no evidence to support a finding by the jury that the plaintiff was responsible for her injuries by contributory negligence beyond a certain percentage. In a practical sense, neither of the two points here argued was taken at the trial. Mr Cassidy QC for the defendant has not argued that the fact the points were not taken at the trial prevents the plaintiff urging them on appeal. But where a point is not taken at the trial, it is, I think, the more difficult in a practical sense for it to succeed at the appellate level. The matter has recently been referred to in the High Court and in this Court on a number of occasions: see Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Burchett v Kane [1980] 2 NSWLR 266(n); Electricity Commission of New South Wales v Yates (1993) 30 NSWLR 351. In Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39 the High Court said: URJ — RYAN v THE HEALTH ADMINISTRATION CORPORATION (Mahoney JA) 3 "\.. there is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction.... [W]hile the failure to seek a direction is not necessarily fatal to an application for a new trial, it is a most material matter to be taken into consideration in the exercise of the court's jurisdiction." It is not necessary to pursue this aspect of the matter further as there was no significant contest upon the appeal in relation to these principles. (d) Prior to the summing-up, there was argument as to the issues to be left to the jury in relation to negligence. In the end, the judge ruled that there were only four heads of negligence to be left to the jury. He stated these as follows: "1. The requirement that the plaintiff perform the lift on each occasion, with nurses from the Community Health Centre in attendance at the home of Miss Jenkins, in order to shower her, and to return on the second occasion alone when she was removed from the wheelchair back to her bed. In that regard it will be submitted that with the exercise of proper care a roster should have been devised reducing the number of times the plaintiff was required to lift the particular patient, it being the plaintiff's case that failure to have such a roster produced additional lifting strain with a cumulative effect for the nursing sister's back. 2. The second matter relates to the alleged failure on the part of the defendant to provide an adequate hospital bed of a height and width which would alleviate the strains on the nursing staff dealing with the patient in question. Again, that is said to be relative for the cumulative effect it would have had on the plaintiffs back. 3. The third head of negligence relied upon is the alleged failure to provide a form of mechanical lifter other than the Henry lifter, being the Isis, the Oxford or the Meca. It was indicated that had there been some other lifter, then at least one of the manual lifts involved in the operation would have been avoided, and possibly more. 4. The fourth head of negligence involves, perhaps, a variation or further particularisation of the third, and concerns the alleged failure of the defendant to provide appropriate straps for the Henry lifter to avoid the need to have a manual lift from the shower chair back to the bed." There has been no appeal from what the judge did in this regard. This matter is of significance in relation to contributory negligence. It was for the defendant to establish that, in relation to the particular acts or defaults of the defendant held to constitute negligence, there was a default by the plaintiff which, in the relevant sense, contributed to what occurred. The significance of what was put in relation to contributory negligence is accordingly to be judged against the background of the heads of negligence upon which the jury was invited to decide the proceeding. In the course of his ruling on these matters, the judge recorded what was urged in respect of each head of negligence. To an extent, what was said narrowed the issues on which a verdict was to be sought from the jury. I shall not lengthen this judgment by setting out the several pages of what the judge recorded. However, in deciding the present issues it is relevant to have them in mind. (e) At the trial, the plaintiff's credit as a witness was in issue. As his Honour noted in summing-up, Mr Cassidy QC had, in relation to the accounts given by her of what had taken place, suggested that she was not to be accepted. The 4 UNREPORTED JUDGMENTS cross-examination put in issue, in my opinion, both her accuracy and her desire to tell the truth: as to the distinction between these two, see JLT Scaffolding International Pty Ltd (in liquidation) v Silva (Court of Appeal, 30 March 1994, unreported). The learned judge, in his summing-up, said: "... Mr Cassidy then said in relation to the plaintiffs evidence generally that there were aspects of her evidence which you would conclude showed that she was either exaggerating or untruthful...". He dealt in detail with two aspects of the evidence to which "in particular" counsel had referred. The fact that the plaintiffs credibility was in issue in this regard is of significance in determining the present appeal. Subject to appropriate limitations, eg, the limitations imposed by the fact that a particular aspect of the plaintiff's evidence was not contested in cross-examination or that otherwise it would be unfair on appeal to call in question the accuracy of what she said, the appeal is to be determined upon the basis that it was open to the jury to reject the relevant portions of the plaintiffs evidence and that, insofar as a conclusion that they did so would reasonably support the verdict they gave, it is to be assumed that they did so. 3. THE FACTS: There was significant contest as to the facts relied upon at the trial. It is, of course, not possible to know upon which version of the facts the jury acted in arriving at their verdict. However, I shall, by way of background to the issues which have arisen, set forth what, in my opinion, were the facts relevant to the jury's decision and open to be accepted by them. The plaintiff was employed to visit patients in their homes and to give them nursing care appropriate to their needs. For the purposes of doing so, there were, inter alia, two things to be decided: what care was to be given; and how it was to be given. In the present case, the first was not in question. The patient, Miss Jenkins, had advanced multiple sclerosis. She lived in a house with her mother and was incapacitated. The care to be given to her included taking her from her bed to her bathroom, washing or showering her, returning her to her bed, dressing her appropriately, and then putting her in a wheelchair. It was necessary to determine what procedure should be followed to provide this care. It was accepted by the parties and, I think, the Court may know that the lifting of a patient, particularly a heavy patient, involves a potential of injury to the nurse. It may, I think, be inferred that the gravity of the danger will be affected by the circumstances in which the patient is to be lifted. Reference was made in the present case, directly or indirectly, to the nature of the bed and accordingly the distance between the patient and the nurse when the patient is lifted, how high the patient is to be lifted and accordingly the difference in height between the bed and that to which or from which the patient is to be lifted, the number of people available to assist in the lift and the lifting apparatus available for the purpose. Nursing services had previously been provided to Miss Jenkins in her home. On or about 29 January 1982 the plaintiff first undertook her care. It was then necessary that a decision be made as to how the care, and in particular the lifting, should be carried out. What occurred was referred to by the plaintiff generally in her evidence in chief, expanded in cross-examination, and to an extent explained by another nurse Sister McDonald who became involved in Miss Jenkins' care with the plaintiff. URJ — RYAN v THE HEALTH ADMINISTRATION CORPORATION (Mahoney JA) 5 The method to be used was not laid down by the defendant itself or by employees specially appointed by it for the purpose. It was accepted by the plaintiff - at least the jury could conclude that it was - that the substantial decision was one to be made by her as the nurse in charge of the case. The defendant placed particular emphasis upon this in its case and in its cross-examination of the plaintiff. In the cross-examination by Mr Cassidy QC, the plaintiff accepted the description of her role as "captain of the ship". In that regard, the following evidence was given: "Q.... you had not sought any advice from any superior in the home nursing service or from any doctor, that is right is it not? A. Yes. Q. And it is as if you on that occasion were the captain of the ship and chose to go ahead and do what Mrs Jenkins wanted you to do without seeking advice from any pilot? A. Another person who is caught in that situation on that day who had not progressively seen Georgia's condition from day to day - from second day to second day - Q. - could not have made as accurate a decision as you did, is that what you are about to say? A. Yes. Q. Because you were the qualified nurse having the day to day continuing knowledge of the patient? A. Yes. Q. And to go back to my analogy of the captain of the ship and the pilot, if on that day you had run up against an iceberg it would have been your fault, wouldn't it? A. Yes." There was other evidence from which the jury could have drawn such a conclusion. The jury could, I think, have concluded that the employer would be exercising the appropriate care for the plaintiff if, as part of its system of work, it left this matter to the determination of the plaintiff, as a qualified nurse; the jury could conclude that it was reasonable for the employer to act upon the basis that her appreciation of the requirements of the particular situation would best determine the procedures appropriate for, inter alia, her own safety. It would, of course, be possible for a different view to be taken. For example, a jury could perhaps conclude, in a particular evidentiary context, that the risk of back injury was such that, to discharge its duty to provide a proper system of work, the employer was required to have each situation assessed by an independent expert. Reference was made in evidence to, as it was described, ergonomics, and the assistance to be derived from such studies. But, in my opinion, in the context of the present case as it was presented it was open to the jury to take a different view. They could conclude that it was proper to leave to the plaintiff, as a skilled nurse, the choice of the method to be used to effect such lifting as was required in the instant case. The jury's verdict is, in my opinion, to be considered upon that basis. The evidence discloses that the plaintiff did make a decision or decisions for this purpose. Previously the patient had been managed essentially with the assistance of her mother. The plaintiff took the view that she should have the assistance of another person and, at her request, Sister McDonald was provided for the purpose. 6 UNREPORTED JUDGMENTS She commenced to assist the plaintiff with Miss Jenkins in about April 1982. In addition, the plaintiff concluded that she should have the assistance of a mechanical lifter. This was requested and a Henry Lift was provided on or about 12 March 1982. There was a third form of assistance available. Persons described as nursing aides were employed by the employer. The jury could, I think, conclude that their duties included themselves providing assistance to patients and also providing assistance to nursing sisters and others who were engaged in patient care. The jury could have concluded that, if the plaintiff had desired the assistance of one or two nursing aides, she could have requested that assistance and it would have been made available. There was discussion at the trial as to the availability of two particular nursing aides. For the plaintiff, it was suggested that it would be difficult or impossible to achieve the assistance of those aides because of the difficulty of arranging rosters which would accommodate the plaintiff, Sister McDonald, and one or both of the aides. However, the evidence disclosed that the plaintiff, when achieving the assistance of Sister McDonald, arranged that the care of Miss Jenkins should be listed first on their joint roster. It was submitted for the defendant that, if one or both of the nursing aides were to be used, the care of Miss Jenkins could be first on their respective rosters. It was, in my opinion, open to the jury to conclude that, had the plaintiff desired the assistance of one or both aides, it could and would have been provided for her. Reference was made in argument to the size of Miss Jenkins' premises and it was suggested that, had the nursing aides been available, it would have been difficult to use them because the room was too small. This was not accepted for the defendant. The jury could, in my opinion, have concluded that if the lifting of Miss Jenkins would have been better done with the assistance of one or both aides, one or both of them could have been used notwithstanding such restriction of space as existed. The plaintiff first suffered trauma to her back on 21 June 1982. This occurred while Miss Jenkins was being lifted from the bed to the wheelchair. It is common ground that the lifter was available to be used for the purpose and the jury could infer that, had it been used, the plaintiffs back would not have been injured in that lifting. The plaintiff said, inter alia, that the reason why she did not use the lift at that time was because Miss Jenkins' mother objected to its being used. The plaintiff claimed that, if Mrs Jenkins took such objection, she could not, or it was appropriate that she should not, use the lifter. It followed, the suggestion was, that to care for Miss Jenkins, it was necessary for the plaintiff and Sister McDonald to lift her physically from the bed to the wheelchair. Attention was paid to this question at the trial. A number of things were referred to. It was suggested for the defendant - it was suggested that the jury might have found that it was accepted by the plaintiff - that, in such circumstances, it was the duty of the plaintiff effectively to persuade the mother to agree to the use of the mechanical lifter. The plaintiff's evidence suggested, in my opinion, that this was so. But, however this be, it was in my opinion open to the jury to conclude that her role as nurse in charge of Miss Jenkins' case involved that she should do so. It was not suggested that the objection taken by Mrs Jenkins had in truth any functional basis. In view of what was said in evidence, the jury might, for example, have concluded that Mrs Jenkins was unwilling emotionally to accept the deterioration in her daughter's In condition, that that deterioration required a URJ — RYAN v THE HEALTH ADMINISTRATION CORPORATION (Mahoney JA) 7 change in the mode of nursing her, and that she objected to the use of the lifter essentially because it involved change in the mode of care. The plaintiff accepted the description of her as "pigheaded". In considering this aspect of the matter the jury was, in my opinion, entitled to take into account what occurred after the plaintiff suffered the first trauma. While she was absent, another person took over the care of Miss Jenkins. She spoke to Mrs Jenkins and, the jury might conclude, there was little difficulty in persuading her to accept the use of the lifter. Sister McDonald, in her evidence, referred to the matter as follows: "Q. Did you have a conversation with Mrs Jenkins, the patient's mother? A. Yes. Actually Mrs Martin did more than what I did. She said that, you know, where was the Henry Lifter and why wasn't it being used and she had used one before in the nursing home so she knew exactly how to use it. So she had asked Mrs Jenkins. Mrs Jenkins wasn't very keen. She said Oh. I think one of the OT's had tried to show somebody, I think Mrs Ryan, how to use it before and the straps lifted. Georgia nearly fell on to the bed. She was very nervous and didn't really want to use it, but Diedre [?sic], Mrs Martin said, 'I have used it. I know how to to [sic]. Will you please let me?' She agreed and it was used that day and from then on." This, in my opinion, had significance in determining whether the failure to use the lifter on the occasion of the first trauma involved contributory negligence on the part of the plaintiff. The plaintiff was away from work for seven weeks. While she was away the care of Miss Jenkins continued under the supervision of Sister McDonald and another. As I have said, during that time, Mrs Jenkins accepted that the lifter should be used. Subject to what I shall say, it continued to be used until the subsequent trauma suffered by the plaintiff in July 1983. It was apparently used for lifting Miss Jenkins from her bed to the stool in which she was taken to be showered: at least, there was no reason why it should not so be used. It was also used or available to be used in lifting her from the bed to her wheelchair. But, the plaintiff suggested, a problem arose in using the lifter in lifting the patient after her shower. This, it was said, arose because of the restrictions arising from the use of particular straps in the lifter. The straps used were, it was said, not appropriate for lifting a patient in and out of a shower because difficulties arose from them when they were wet. The suggestion was that a nylon or similar strap or apparatus was to be used where it was apt to be wet. There was, the jury might have thought, doubt or confusion as to the extent to which this was so. In relation to it the plaintiff's witness Sister McDonald said: "Q. As far as you could see, was the Henry Lifter a perfectly satisfactory way of dealing with Georgia after it came to be used? A. Yes. It was. Q. Was there anything wrong with the attachments for it? A. No. Q. As far as you could see as a nurse? A. No. We used the same attachments." And the jury could conclude that, had the plaintiff asked her employer to provide different straps or the like, they would have been provided. Sister McDonald suggested that these could be obtained by telephoning the occupational therapist. The fact was that for many months the plaintiff cared for 8 UNREPORTED JUDGMENTS Miss Jenkins by lifting her with the lifter in parts of the operation but, when she was brought from the shower, lifting her from the chair or stool in which she sat onto the bed. The plaintiff sought to explain her omission to obtain what, on her view, were more satisfactory straps or appliances by an account of efforts that she made, by inquiry of an occupational therapist and otherwise, to obtain different equipment. There was, the jury might think, no satisfactory explanation given as to why she did not obtain the relevant equipment by seeking it from her employer in the manner provided for doing it. Ultimately, on 11 July 1983, in the course of lifting Miss Jenkins from the shower chair to the bed, the plaintiff suffered further back trauma. It was not clear from the evidence what was the extent of the trauma suffered in the first and in the second incidents. The evidence given related principally to the total result of the two incidents and, in her claim, the plaintiff sought damages from the totality of what had occurred and the effect of it on her. But, Mr Cassidy QC submitted, in my opinion correctly, that it was open to them to attribute to the first trauma a greater or lesser degree of responsibility for her final overall condition. 4. CONTRIBUTORY NEGLIGENCE: As I have indicated, the judge directed the jury that it was open to them to find negligence in respect of four matters. The defendant's case was, and had to be, that in respect of such of them as the jury found to have been established, the plaintiff's own disregard for her safety contributed to the occurrence of the trauma. As it is not possible to know on which heads of negligence the jury acted, counsel have properly directed attention to the suggestions of contributory negligence relevant in respect of each of them. During the course of the long hearing, various suggestions of contributory negligence were made. Different suggestions were, of course, made in respect of each trauma. It is not necessary for the purpose of deciding this appeal to canvass every suggestion that was made. It will be sufficient to go to the most substantial of them. In relation to the first trauma, the main submissions for the defendant were two. First, it was submitted that the plaintiff showed lack of proper care for her own safety by lifting Miss Jenkins without the help of the lifter. The lifter was available. It had been sought by the plaintiff and at her request the employer had provided it. It was available to be used in relation to the lift in question, namely, the lift from the bed to the chair. The plaintiff's claim was that she could not or did not use it because Mrs Jenkins would not agree to its use. The defendant suggested several replies to this. It is sufficient to refer to one of them. As I have indicated, the defendant suggested that it was part of the plaintiff's duty to persuade Mrs Jenkins to agree to its use, that if she had used reasonable efforts, Mrs Jenkins would have agreed, and that if she proceeded with the lifting without doing so, she failed to take proper care for her own safety. The evidence of Sister McDonald of how the plaintiff's successor after the first trauma had persuaded Mrs Jenkins to agree to the use of the lifter provided a sufficient basis for the jury finding that the plaintiff had made no, or no sufficient, efforts to persuade Mrs Jenkins to agree to the use of it. The judge left to the jury the question whether she should have "argued" Mrs Jenkins out of such opposition as she offered. His Honour said: URJ — RYAN v THE HEALTH ADMINISTRATION CORPORATION (Mahoney JA) 9 "Mr Cassidy submitted that this plaintiff was an experienced nurse, able to make judgments and that she failed to adequately bring the problem to notice to the employer and also she should not have set out on her own or through the occupational therapist to procure appropriate straps. Further, he said that she really should have done more about pursuing a bed after Mrs Jenkins indicated she did not want a single bed. Further, he submitted she failed to call for assistance from the nursing aids [sic] and should not have accepted Mrs Jenkins' views but should either have argued it out with her or refused to carry on. So, in those ways Mr Cassidy submitted that there was a substantial blame on her part and if you found negligence on the defendant's part then you would also find that there was contributory negligence by the plaintiff." Mr Toomey QC, in his submissions, submitted that this places an unacceptable burden upon an employee. He submitted that an employee is not guilty of contributory negligence where what she does is done in order to cope with defects in a system of work which should have been better structured. He referred to the statement of Dixon J in Davies v Adelaide Chemical and Fertilizer Co Ltd (1946) 74 CLR 541 at 552-553. He submitted that the onus was upon the employer to establish a system of work under which the lifter could be used and that that onus was not discharged by leaving to the employee the task of arranging that it be able to be used. Mr Toomey's submissions have force. But there are distinctions to be made. In my opinion 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 it is not so in all cases. In my opinion it was open to the jury to conclude that it was not so in the present case. It would be curious if a fully trained nurse was required, in such circumstances as the present case, to invoke the assistance of another officer of the employer to persuade the mother of a patient to allow proper equipment to be used. Common sense, and the evidence in the present case, suggests that that could properly, and best, be done by the trained nurse in charge of the case. At the least, it was open to the jury so to find. It was suggested for the plaintiff that she had tried to persuade Mrs Jenkins, had failed to do so, and was forced to lift the patient as she did. The jury was not required to come to that conclusion. But that suggestion leads to the second matter referred to for the employer. As the judge indicated in his summing-up, it had been put to the jury that, if despite proper persuasion Mrs Jenkins had refused to allow the lifter to be used, it was open to the plaintiff to refuse to carry on with the care of the patient. That, of course, would have been a strong attitude to take. It is understandable that it was one which would not have been taken on a first refusal by the mother. But the evidence disclosed that for several months after the lifter was available, it was not used: the plaintiff continued to lift the patient physically. The jury could have concluded that, having tried unsuccessfully to persuade Mrs Jenkins over a substantial period, proper care for her own safety required that the plaintiff indicate that she would no longer continue with a physical lifting. As I have said, the danger of back injury in a situation such as the present was well known: it could be inferred it was well known to the plaintiff as a trained nurse. The jury could have concluded that she should have safeguarded her own position by bringing the matter to a head. 10 UNREPORTED JUDGMENTS The second trauma gives rise to different considerations. The lifter was available for use. The plaintiff's case was that she did not use it because the straps or apparatus on it were not satisfactory and that it could not or should not be used until proper straps or apparatus could be obtained. The lifting involved was between the shower and the bed. Mr Toomey QC submitted that it was not open to the jury to conclude that, by continuing physically to lift the patient, the plaintiff ignored her own safety. The defendant's submission suggested a number of answers to this. First, it suggested that the jury may have concluded that, in respect of the second trauma, the defendant was not negligent and that accordingly no finding of contributory negligence was made. The defendant had contested negligence in respect of the second trauma in a number of ways. It contended that the straps or apparatus on the lifter were satisfactory and could be used for the lift in question. The jury could, I think, have so found; for example, the evidence given by the plaintiff's witness, Sister McDonald, suggested that there was nothing wrong with the attachments. There was evidence to establish also that, if different attachments were required, they could readily be obtained. Sister McDonald suggested that by telephoning the occupational therapist the plaintiff could have obtained whatever was necessary. She denied that that was so but the jury could have accepted, in this regard, the thrust of what Sister McDonald suggested. They could, on bases such as these, have concluded that the defendant had a proper system of work at the time of the second trauma and that it did not result from the defendant's negligence. Accordingly, no error in relation to contributory negligence could be inferred. The defendant suggested, in addition, that the plaintiff was aware that if risk was involved in lifting the patient from the shower or the stool to the bed, she could and should have sought the assistance of one or both of the nursing aides who were available for the purpose. This, as a possibility, was open to her and she was conscious of it. The jury could have found that if as she suggested she thought there was danger in the physical lifting of the patient in this regard, she showed lack of proper care for her own safety in failing to seek the assistance that was available to her. The submissions made for the plaintiff suggested in this respect also that a system of work which places the onus upon an employee to mitigate individual dangers of injury is not a proper system of work; the employee should not be held guilty of contributory negligence by failing to seek out precautions against injury in such cases. I agree that issues of negligence and contributory negligence should not turn simply upon mistakes made by employees in the course of carrying out a system of work which involves the possibility of injury to them. But each case must be assessed upon its particular facts. If it be accepted that it was for the plaintiff, as a trained nurse, to determine how the care was to be provided to the patient, the possibility of contributory negligence must be considered. I do not mean by this that every mistaken judgment made by a person in the plaintiffs position should or, perhaps, can be held contributory negligence. But the state of affairs of which the plaintiff complained had, if her evidence was accepted, continued for a substantial time. She continued the method of work which she had adopted for over twelve months. She was, the jury could think, fully acquainted with the possibility of seeking help from the nursing aides and she had sufficient time to do so. The jury could conclude that her failure, over that time, to seek the available help involved a failure to take care for her own safety. URJ RYAN v THE HEALTH ADMINISTRATION CORPORATION (Giles AJA) 11 I have dealt with the submissions made by reference to some of the findings of fact which it was open to the jury to make. As I have indicated, it is not possible to know the factual basis upon which the jury came to consider the issue of contributory negligence. It may be that they approached that issue upon a basis different from the bases to which I have referred. It is sufficient to conclude, as I do, that it cannot be said that there were no bases on which the jury could have found contributory negligence against the plaintiff. Upon this basis I come to consider whether the finding that responsibility should be apportioned to the plaintiff as to fifty per cent was perverse or otherwise not to be open to the jury. It is in my opinion a sufficient answer to say that this point was not taken at the trial and that if it had been taken the trial might have proceeded differently. Given that a finding of contributory negligence was open, this submission must, I think, involve that responsibility could not have been apportioned to the plaintiff beyond a particular percentage. It involves that the judge should have been asked so to direct the jury. If he had been so asked, it would have been necessary for him to select a percentage which was the maximum which the jury could have apportioned to the plaintiff and to direct the jury accordingly. It would have been necessary or at least relevant for the judge and jury to have had evidence upon which, as it may be put, "the line is to be drawn". I do not doubt that in some cases it may be open to an appellate court to conclude that, though a finding of contributory negligence was open, it was perverse for the jury to assign to the plaintiff the percentage of responsibility that it did. Special cases of this kind may arise. In my opinion this is not such a case. If it be accepted that the plaintiff was "master of the ship" or that it was otherwise her right and duty to choose from the available facilities the method of supplying care to the patient and the means by which it was to be supplied, I do not think that the jury acted beyond the scope available to them in making the apportionment that they made. This matter is, of course, of particular significance to the plaintiff. The verdict is a large verdict but the percentage of contributory negligence reduces it by an amount which in money terms is substantial. I have therefore examined at length the submissions which have been made. But in the end I see no appealable error in what the jury did. I would dismiss the appeal with costs. Priestley JA The questions for this court to decide in this appeal are whether there was evidence of contributory negligence fit to be left to the jury, and whether, if that question be answered yes, the jury's apportionment of 50 per cent as the plaintiff's share in the responsibility for the damage should be changed by this court. For the reasons given by Mahoney JA it seems to me this court should answer the first question yes and the second no. Accordingly the appeal should in my opinion be dismissed with costs. Giles AJA For the reasons given by Mahoney JA, it was open to the jury to find contributory negligence against the plaintiff. Those same reasons demonstrate, in my view, that it was within the range open to the jury to assess the plaintiff's responsibility for her injuries at 50 per cent. I too would dismiss the appeal with costs. Appeal dismissed with costs. 12 UNREPORTED JUDGMENTS REPRESENTATION Counsel for the appellant: BMJ TOOMEY QC / GA FARMER Solicitors for the appellant: TURNER FREEMAN Counsel for the respondent: DJ CASSIDY QC / AJ CANDY Solicitors for the respondent: ELKEONARA G SCARPARO