Hutton v Southern Pathology Services [2001] NSWCA 319

New South Wales Court of Appeal

CITATION : Hutton v Southern Pathology Services [2001] NSWCA 319 FILE NUMBER(S) : CA 40744/00 HEARING DATE(S) : 14 June 2001 JUDGMENT DATE : 14 September 2001

Tracey Marie Hutton (Appellant) PARTIES : v Southern Pathology Services Pty Ltd (Respondent) JUDGMENT OF : Beazley JA at 1; Davies AJA at 2; Grove J at 33

LOWER COURT JURISDICTION : District Court LOWER COURT 105/94 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

COUNSEL : A: Mr A Morrison SC, Mr K Morrissey R: Mr C O'Connor QC, Mr B Smith SOLICITORS : A: Hozack Clisdell Lawyers R: Moray & Agnew Solicitors CATCHWORDS : Tort - Negligence - Duty of care - whether employer failed to provide safe system of work - whether method of disposal of used needles was safe and had been explained - whether manual was defective - nurse injured by contaminated needle. CASES CITED: McLean v Tedman (1984) 155 CLR 306 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40744/00 DC 105/94 BEAZLEY JA DAVIES AJA GROVE J

FRIDAY, 14 SEPTEMBER 2001 TRACEY MARIE HUTTON v SOUTHERN PATHOLOGY SERVICES PTY LIMITED

JUDGMENT 1 BEAZLEY JA: I agree with Davies AJA. 2 DAVIES AJA: This is an appeal by leave from the judgment of a judge of the District Court of New South Wales, his Honour Judge J B Phelan. His Honour dismissed a claim for negligence brought by the appellant, Tracey Marie Hutton, against the respondent, Southern Pathology Services Pty Limited ("Southern Pathology"). His Honour was satisfied that no breach of duty on the part of Southern Pathology had been established. 3 The appellant qualified as a registered nurse in 1983. In the course of her career, she worked in a nursing home with the elderly, in a pathology practice in Wollongong, in the Intensive Care Unit at Port Kembla Hospital and for radiologists. In a letter which is in evidence, the appellant referred to working in a pathology practice in Sydney, which specialised in venipuncture. However, this was not mentioned in oral evidence. The appellant last worked as a blood collector in 1986-1987. The appellant moved to Ulladulla in 1990 and obtained employment with Southern Pathology, which carried on a pathology practice at Nowra. 4 The appellant worked for four to six weeks before the accident occurred on 18 May 1990. When she first joined the practice, the appellant was given supervision for the first two days or so by Mrs Barbara Cannon, the chief collector at the time, who was described by another witness as the person who trained all the staff. Mrs Cannon died prior to the trial. The appellant agreed, in cross-examination, that she was an experienced nursing sister, that she had had seven years' experience and that she had taken blood from and given injections to people on thousands and thousands of occasions. It was put to her that she was somebody who would be regarded, in 1990, as a very experienced collector. The appellant said, "I was known as a good collector". She agreed that she knew what to do. 5 The evidence shows that, in collecting blood, there were a number of procedures that were standard. The blood specimen was collected, labelled and put into a flexible plastic bag which was sent to the laboratory. Contaminated waste was placed in another bag and put into a container for appropriate disposal. Sharp instruments, such as needles, were dropped into containers described as "sharps containers", which, when full, were appropriately disposed of. 6 On the evidence of Sister M C Rooney, who was second in charge of collecting at Nowra at the time when the accident occurred, there were at least two types of sharps containers, one for ordinary needles and like objects, and the other, which had a wider neck, for the disposal of butterfly needles. The containers for ordinary needles, which were shaped like a milk bottle, were supplied by the Health Department. The containers used by Southern Pathology for the disposal of butterfly needles were urine specimen containers which had a lid on top. The neck of these containers was large enough to permit the butterfly needles to be dropped in. 7 Senior counsel for the appellant described the use of the specimen containers as a peculiar practice of Southern Pathology. However, there was no evidence supporting this comment. Butterfly needles were a common instrument used in the collection of blood in difficult cases. As they could not be readily dropped into the ordinary sharps containers, which had a narrow neck, the assumption may be made that it was common practice to provide containers with a wider neck, such as specimen containers, for the disposal of butterfly needles. The evidence before the Court did not show that the specimen containers were inappropriate for their purpose or that such containers were not standard equipment in pathology practices. 8 Sister Rooney gave evidence that the larger containers were in plentiful supply, that each collector had a desk and drawers and that the containers and all other necessary stores were kept in those drawers. 9 The appellant gave this evidence concerning the containers:- "Q. Isn't it the fact that the containers that were in existence at the time didn't have a wide enough aperture for the purpose of dropping in these butterfly needles because of the fact they're spread out, do you remember that? … A. Yeah, I can't actually recall the containers. … Q. It wasn't actually a Dairy Farmers milk container, was it? A. Well, I can't recall a hundred per cent what it was like because I'm trying to think of something that was ten years ago but it was like an old cut out plastic thing or a, I can't remember if they had those or a bottle with just a -- … Q. I'm suggesting that you're right in that there was a container which was in a similar shape and size to a milk container that they used for disposing of needles, right, we agree on that. But the aperture at the top of it wasn't clear, it was easy to drop a normal sheath needle through? A. Right. Q. But not a butterfly needle because of the wings on the butterfly. So in order to dispose of butterfly needles it was common use to use specimen tubes, plastic, cylindrical specimen tubes, you know what I mean by that, don't you? A. It's just a blood collection tube? Q. Yes - well, no, not a blood collection tube, they're long and thin. I'm talking about a urine specimen jar which are I think about 2 or 3 centimetres tall, they're the same width at the top as the bottom and they had a screw top lid, you know the type I mean, don't you? A. I know the jar you mean, but I've never disposed of a butterfly needle in that manner, ever."