O'NEILL v THE BOOROWA DISTRICT HOSPITAL [1996] NSWCA 581

O'NEILL v THE BOOROWA DISTRICT HOSPITAL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 4 July 1996, 4 July 1996

[1996] NSWCA 581

CONTRIBUTORY NEGLIGENCE — should not have been left to jury — jury's assessment overruled.

Cole JA The appellant was injured on 22 August 1985 whilst employed by the respondent. She was employed as the craft lady at the Boorowa Hospital Day Care Centre which is nearby to the hospital.

The injury she sustained was a disc rupture which occurred when she was attempting to manoeuvre an elderly patient into a position to go to the toilet. The staff at the Day Care Centre comprised a sister in charge, a trained nurse and the craft lady who was the appellant. In addition, some casual assistance was given by a Mrs Noakes, who was a person who attended the day care centre in the capacity of a client, as she had been called.

At the time of the appellant's injury neither the sister in charge nor the nurse was present. The patient, or client, Mrs Walk, was a person who was elderly being in her late seventies, was confined to a wheelchair and had one leg partially amputated. Mrs Walk told the appellant that she needed to go to the toilet. Rather than call to the sister in charge, or obtain the services of a nurse, the appellant sought to assist Mrs Walk with the assistance of Mrs Noakes to take her to the toilet. There were no lifting devices in the centre and the appellant had not received any training in handling disabled patients as Mrs Walk was. She had not been instructed that if there was no trained nursing staff at the centre and a patient needed to go to the toilet she was either to ring the hospital and ask for a trained nurse or await the matron or nurse.

The jury found the respondent negligent and awarded damages in the sum of $320,000 but reduced that amount by 35% owing to the plaintiff's contributory negligence as found by the jury.