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." It will be noted that the appellant's memory was such that she could not actually recall what either the ordinary or the larger containers were like. This may have been due, in part, to the severe psychological problems she suffered as a result of the accident. 10 Although the appellant did not recall the containers used for butterfly needles, she did agree in evidence that she had used butterfly needles before. The appellant later gave this evidence, in cross-examination:- "Q. On previous occasions that you had handled butterfly needles, how did you dispose of them then, at this place? A. We would put them in the, the milk bottle container. Q. You would put them in there? A. Or the container supplied on your desk. Q. You just dropped them in did you? A. As I remember yes." 11 The appellant did not say in her evidence that she was not familiar with the use and disposal of butterfly needles, nor did she say that the accident occurred because she was unaware of the normal means of disposing of butterfly needles. 12 The accident occurred when the appellant took blood from a patient who was a known HIV sufferer. She was aware of the risk of infection. On the appellant's evidence, with which Sister Rooney did not agree, she called in Sister Rooney to assist her to find a vein, which in an HIV patient can be difficult. The evidence is not clear as to whether the appellant, Sister Rooney or the patient took the blood. The trial Judge made no finding on this point but held that the patient remained the appellant's patient and that it was the appellant who had the task of packaging the blood, the needle and so on. A butterfly needle was used. 13 The appellant checked the manual, with which she had been provided, so as to ensure that all proper procedures were followed. She had earlier read this manual when she commenced to work in the practice. 14 The manual provided, inter alia, concerning collecting procedures in relation to AIDS:- " COLLECTING PROCEDURES 1. If for HTLV III virus - 2mls blood plain tube 2. Gloves (special fine gloves supplied) to be worn in all collections for blood, semen, urine, faeces, saliva, pus, H.V.S., Cervical swabs etc. 3. Tubes to be labelled - Sticker labelled 'Infections Risk'. 4. Specimens may be separated in rooms but be careful of spillage. 5. Place in specimen bag marked 'Infectious Risk' and transport to laboratory. 6. Do not resheath needles . 7. Place all contaminated items in large tin container marked 'Highly Contaminated'. 8. Wash hands using soap pads (Iodophor if available, unless skin problems)." 15 After reading the manual, the appellant did not follow the standard practice of disposing of the butterfly needle into a sharps container. She placed the specimen of blood into a specimen bag. She labelled the bag and marked it "Infectious Risk". The appellant knew that that bag had to be transported to the laboratory. She then placed the butterfly needle in another specimen bag. She was in the process of labelling the bag "Infectious Risk" or of closing the bag when she was accidentally pricked by the needle. 16 The appellant gave evidence that she understood the manual to require that the butterfly needle and contaminated waste be placed in a specimen bag, marked "Infectious Risk", and transported to the laboratory. 17 It may be seen that, in the course of conscientiously performing her duty, the appellant misread the manual. Clauses 3, 4 and 5 of the manual dealt with the blood specimen and required no unusual step to be taken other than to label the bag "Infectious Risk". The appellant had and used such a label. Clause 6 dealt with the needles. It required that the needles not be resheathed. This direction accorded with standard practice. Clause 6 did not specifically mention the means of disposal. Clause 7 dealt with other contaminated items and the means of their disposal. 18 In her evidence, the appellant said that she placed the butterfly needle in the specimen bag because she considered that the manual required her to do so. She said that she never previously came across a contaminated patient. She gave this evidence:- "Q. But you'd been working there for some weeks and you'd been working in that industry for some years, you knew, didn't you that a plastic bag wasn't the way of disposing of a needle? A. One, I'd never come across a contaminated patient before, and two, I'd follow the procedure in the manual, I did what the company had told me to do to dispose of that infectious needle, and that's the first infected patient of any kind, hepatitis or AIDS or whatever I'd ever come across and had to dispose of. Q. But isn't there a standard way in which you dispose of any waste after a blood collection? A. In a non infectious patient you just, you put it in your sharps container on your table which in those days if I remember correctly used to be like a cut up milk bottle thing, a plastic milk container or various other things they had in those days. … Q. You don't recall, okay, that's all right. You see, the bag was for the specimen, wasn't it, not for the waste? A. The specimen was to go in a bag and then that was to go to the laboratory and then the waste, the infectious waste was supposed to go in the bag and to the laboratory. … A. Well, as I interpreted the manual, like it says, you transport the bag to the laboratory. [Q.] In the whole time you've worked there you've never had to carry needles, used needles from one room to another, had you? A. Infectious ones, no. Because I'd never come across an infectious one. HIS HONOUR: Q. I'm sorry? A. I'd never come across an infected needle before …" 19 The appellant's evidence that she had never previously come across an infectious patient or an infected needle was, of course, wrong. Sister Rooney gave evidence that it was standard practice to treat all blood as potentially infectious. Although the evidence did not say so, the purpose of taking blood on many occasions was to test for infection. 20 There were three factors which appear to have contributed to the accident. The first was that the appellant may have become flustered when she had to deal with an HIV patient. The appellant's evidence was replete with references to the fact that she had never previously had to deal with an infectious patient. This cannot be correct. Perhaps she meant that she had not previously dealt with an HIV patient. The appellant must commonly have taken blood from patients who carried infections. All blood should have been treated as potentially infectious. That was the reason why such care was taken for the disposal of needles and other sharp instruments in sharps containers. The appellant, apparently, had not previously taken blood from a known HIV patient. She did not, however, tell Sister Rooney of this fact nor ask Sister Rooney, or any other person in the practice, for advice as to the procedures to be undertaken. 21 The second was that the appellant did not adopt what Sister Rooney said was proper practice, namely, to set out on the desk before taking the blood, all the instruments and articles that would be needed. Sister Rooney said that these should be set out on the desk so that they were ready for use when required. 22 The third was that the appellant read the manual whilst she was undertaking the finishing tasks, not before she commenced to take the blood. 23 Because she misread the manual, the appellant failed to follow what was the standard procedure, namely, to dispose of the needle into a sharps container. She took the steps she did because she considered that she was required to do so by the manual. The manual did not so require and, in my opinion, was not misleading. It is surprising that the appellant thought either that the butterfly needle had to be sent to the laboratory or that it had to be sent in a plastic specimen bag rather than placed in a sharps container for disposal. However, that is what occurred. 24 Senior counsel for the appellant submitted that the accident occurred because no adequate provision was made for the disposal of butterfly needles and because the appellant was uncertain as to how to dispose of the butterfly needle which had been used. However, the appellant did not give evidence to that effect. She did not give evidence that she looked at the manual because she was uncertain as to how butterfly needles were disposed of. The appellant said that she disposed of the butterfly needle as she did because the manual so required. For example, she gave this evidence:- "Q. You had used butterfly needles before, hadn't you? A. Yes, not that often, but yes I had, on difficult patients, but I was good at taking blood and I could usually get it with a normal, a plain needle. Q. But this was the first time you had ever disposed of one in a bag? A. Yes, because of the infectious risk policy in the manual." 25 The appellant said that she examined the manual because she wanted to check the correct procedures when dealing with an HIV patient. The appellant also gave this evidence:- "Q. What I was going to suggest to you is this, you didn't have recourse to any container that day because you believe that this needle had to be put into a bag, isn't that right? A. Well yes, I followed what I have read in the manual for infectious waste. Q. I just want a yes or no answer to this question. You believe it didn't matter what container was there because you believed that this needle had to be placed in a bag labelled and sealed, isn't that right? HIS HONOUR: You mean exhibit 3? GILBERT: Q. Exhibit 3? A. Yes, that's what I believed as I read." 26 Counsel for the appellant submitted that Southern Pathology had failed to provide a safe system for the disposal of butterfly needles or had failed to communicate that system. Counsel submitted that the accident occurred because nobody had told the appellant what system should be adopted. 27 However, the trial Judge was not satisfied that Southern Pathology had failed to institute a safe system. He was not satisfied that the appellant lacked any essential equipment. He was not satisfied that Southern Pathology had failed to give adequate information to the appellant as to the system to be followed. 28 I see no error in the trial Judge's findings in this respect. The manual was not misleading. Nor was there any matter which had to be specifically communicated in relation to the disposal of needles used in the taking of blood from an HIV patient, save perhaps for the labelling. The appellant had the appropriate labels and used them. 29 The trial Judge took the view that the accident occurred because the appellant misread the manual. The trial Judge found that the appellant, "did not have recourse to any container on 18 May 1990 because she believed from reading the manual that the needle had to be put in a plastic bag". His Honour said that the construction which the appellant put upon the manual did not make sense. His Honour concluded that the appellant had misread the manual in a manner which was not reasonably foreseeable on the employer's part. The trial Judge added:- "This was because the instruction was clear in its terms, was a practice that applied where contamination was assumed to be always possible and in circumstances where to conclude as the plaintiff did was positively dangerous and unreasonable." I see no error in the view taken by the trial Judge. 30 In giving consideration of the principle enunciated by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306 at 311-312 that, "an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task", the trial Judge, relevantly, took into account that the appellant was a person of professional status and experienced in her profession. 31 The trial Judge was entitled to take that view. The appellant had put herself forward as a qualified nurse and an experienced and good collector. She had been supervised when she first joined Southern Pathology. She had been found to be competent in her work. Southern Pathology was entitled to act on the basis that she knew the standard procedures. Those procedures were safe procedures. In relation to an HIV patient, the procedure to be adopted for the disposal of a needle was the standard procedure. No expert tuition or supervision was required. Unfortunately, this is a case where a person, who was well qualified, acted inexplicably. 32 In my opinion, the appeal should be dismissed with costs. 33 GROVE J: I agree with Davies AJA. ********** 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.