New South Wales Court of Appeal CITATION: GREATER WESTERN AREA HEALTH SERVICE v EDWARDS [2005] NSWCA 387 HEARING DATE(S): 26 October 2005 JUDGMENT DATE: 26 October 2005 JUDGMENT OF: Mason P at 1; Hodgson JA at 34; Tobias JA at 41 DECISION: Appeal upheld. New trial, except as to damages CATCHWORDS: PROCEDURAL FAIRNESS – negligence action – injury suffered while getting off exercise bike during physiotherapy – inconsistent versions from plaintiff and physiotherapist – credibility conflict – issue of the capacity of the physiotherapist to handle the plaintiff – procedural unfairness – where trial judge's finding lay outside the particulars and the matters raised at trial – where cross-examination was insufficient to raise the issue of weight discrepancy – order for new trial. (ND) LEGISLATION CITED: Civil Liability Act Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 CASES CITED: Kassem v Crossley & Anor [2000] NSWCA 276 GREATER WESTERN AREA HEALTH SERVICE PARTIES: Pamella Dawn EDWARDS FILE NUMBER(S): CA 40434/05 Appellant: D Davies SC/ R Weinstein COUNSEL: Respondent: P Arden SC Appellant: Frances Allpress, Solicitor, GIO Australia SOLICITORS: Respondent: Savage, Lawyers, Orange LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 40/03 LOWER COURT JUDICIAL OFFICER: Phegan DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40434/05 MASON P HODGSON JA TOBIAS JA Wednesday 26 October 2005 GREATER WESTERN AREA HEALTH SERVICE v Pamella Dawn EDWARDS JUDGMENT 1 MASON P: The respondent suffered substantial injury when she fell while getting off an exercise bike. She was recovering from a right knee replacement operation as an inpatient at the Bathurst Base Hospital. Part of her rehabilitation involved attendance at the physiotherapy department to exercise the knee. She was under the supervision of a physiotherapist, Ms Barron. 2 The respondent was aged sixty-six at the time of the incident, which was in November 2001. Her weight is referred to in the judgment as 79 kilos. It is possible that she was heavier than that. She was undoubtedly a comparatively large woman. She had been diagnosed with degenerative osteoarthritis in both knees, with a recommendation to have bilateral total knee replacement. The right knee was to be replaced first, because it was the less serious of the two. The total replacement of the right knee occurred on 29 October 2001. 3 The respondent made good progress after the surgery and was able to walk with a stick. She attended the physiotherapy department on the day in question, walking to it. Some matters were common ground. The respondent mounted the exercise bike with Ms Barron's assistance, after Ms Barron had provided explanation as to what was expected. Ms Barron said that the exercise was to be oscillation as distinct from pedalling fully in the normal manner. 4 On the respondent's version, she got stuck with her left pedal in the up position, unable to press it further down. She called for help. Ms Barron remained seated and told her to slide her left foot onto a nearby stool. As the respondent endeavoured to do this, unaided, she took her right foot off the pedal that was then at the point close to the floor. As soon as her right leg took her weight, it gave out. She slumped forward, causing extensive permanent damage to the right knee. 5 Ms Barron's version of the accident was demonstrably different. According to her, she remained standing beside the respondent. In order to steady her, she had placed one hand on the respondent's left shoulder, and the other around her waist. Once she was satisfied the respondent was firmly seated on the bike, she removed her hands, but remained close by. There were then several oscillations in the form required. But after a few minutes the respondent complained that she felt uncomfortable, and Ms Barron told her that if that was the case they would stop. 6 Ms Barron said that she told the respondent that she would help her off the bike, that she reminded her of the need to rely on her left leg, and that she stood facing her to assist her as she dismounted. She said that she told the respondent to step towards her while she (Ms Barron) was standing to the left front of where the respondent was seated on the bike. 7 Ms Barron says that she again placed her hands on the respondent in the manner previously indicated. However, as the plaintiff slipped forward on the seat, she went to the right instead of the left, and her right leg gave way. Ms Barron caught hold of the respondent as she fell forward to prevent her from falling any further. 8 The trial took place in the District Court before Judge Phegan. There were several particulars of negligence. There was a defence invoking s5 O of the Civil Liability Act in particular, and raising an issue of contributory negligence. 9 At trial the plaintiff's experts gave evidence to the effect that on the plaintiff's version there was negligence. This conclusion was virtually conceded at trial. 10 There was, however, a sharply contested trial as to what happened in the incident. The two persons involved were cross-examined. At trial the defendant's experts, notably Mr Schneider, a specialist in musculoskeletal physiotherapy, gave evidence that on Ms Barron's version there was no negligence. 11 The trial judge said (Red 23): I have rarely encountered a case where the choice between two equally credible and reliable witnesses presented such an acute difficulty. The possible reasons for rejecting one and accepting the other, such as self-interest, is purely speculative and not grounded in any concrete observation that I was able to make about either of them. ... Because of the acutely difficult task of choosing between these two witnesses, I have chosen to attempt to examine the evidence on the basis of whether a failure to exercise reasonable care on Ms Barron's part could be found to have occurred, even if her account of what happened was broadly accepted." 12 At various points in his recital of the evidence his Honour made glancing observations that could be seen as touching on credibility one way or the other, but nowhere in his judgment did he resolve the critical conflict between the two key witnesses. The passage I have just set out and the reasoning in the judgment as a whole indicate, to my satisfaction, that his Honour found it unnecessary to do so because he was able to proceed to a finding of liability on the basis of assuming the correctness of Ms Barron's version. There is certainly no criticism implicit in this observation. It was a perfectly legitimate way to address a difficult credibility conflict. 13 The appeal arises out of the way his Honour proceeded to find liability, based upon the assumption I have just stated. I think it can be said that there were two key aspects of Ms Barron's evidence, on her version of the events. The first was that Ms Barron had immediately before the accident instructed the respondent to get off the bike by putting her weight on her left leg. The second was that Ms Barron was standing in front of the respondent, holding her, with her left hand on the respondent's right shoulder and the right hand around the left side of the respondent's lower back. 14 His Honour restated the ultimate issue on these assumptions in the following terms (Red 27): But that still leaves the question which is at the core of what I have identified as the principal basis on which the defendant may be found liable to the plaintiff, and that is whether, even if Ms Barron did all that she described she did in her oral evidence, and even if it was not referred to in the reports from which I have just quoted, what she did was sufficient. Plaintiff's counsel submitted that it was not. 'Hands on' and no more was demonstrably inadequate to protect the plaintiff from going to the right in the way that she did. The plaintiff, in order to guard against that, should have been firmly held as she dismounted. If she could not be sufficiently firmly held to prevent her going to the right, she should have been explicitly instructed to put her own weight against Ms Barron in order to ensure that there would be no risk of her reverting to the right hand side. It is this core issue which suffers from a lack of attention in the expert evidence. That is understandable in view of the fact that the experts qualified in the plaintiff's case were invited to give their opinion on the basis of the plaintiff's account of what happened, not Ms Barron's account. The consequence of that is that their reports tend to emphasise the demonstrably negligent behaviour of Ms Barron if, as the plaintiff testified, Ms Barron did not even take the trouble to go over to where the plaintiff was on the bike, and supervise her use of it. 15 I would observe that there is an issue and a problem arising out of the passage I have just quoted, and other material later in his Honour's reasons in this sense: his Honour seems, on a basis that is not terribly apparent, to be doubting the very assumption upon which he proceeds to judgment in that it was Ms Barron's evidence that she was standing in front of the respondent and holding her immediately before the accident. I pass beyond that, because it is not critical to my reasoning. 16 I have already referred to the role of Mr Schneider as the principal expert witness for the defendant at trial. He had been cross-examined, but only relevant to the way he had addressed the factual issues and that way was focused very much on the testimony of Ms Barron and the two key assumptions to which I have referred. He was not cross-examined - and this is the critical matter - upon additional material touching and relevant to the Barron version of events, but significant in the conclusion that the Barron version of the events betokened negligence. 17 The critical passages in the judgment are at Red 29 and 30: However, what Mr Schneider did not have at any stage, and this brings me to another very difficult aspect of the evidence, were details of the respective physical characteristics of the plaintiff and Ms Barron. The plaintiff was a woman of robust appearance and of quite substantial weight. She was at the time some 79 kilograms. At that weight she provided a quite dramatic comparison in a physical sense to the very slender Ms Barron. These differences, as a matter of commonsense, and I do not take the view that I need expert opinion to assist me in this regard, were quite significant. An observation of the physical characteristics of the plaintiff and Ms Barron respectively would suggest that Ms Barron would have had very considerable difficulty, in the position in which she placed herself according to her own evidence, in preventing the plaintiff from moving to the right hand side and placing weight on her leg as she did. This was a case where it is more likely than not that, if effective restraint was to be provided by Ms Barron, [she] would have needed assistance, a need which, in her sensitivity to any suggestion of inadequacy in her own professional judgment, she quite explicitly discounted as being necessary. Ms Barron's physical stature was such that she was no match for a woman of the plaintiff's size and weight seated on a bicycle seat, and therefore at least marginally above Ms Barron, who was standing on the floor. Ms Barron would not have been able to deal with the emergency which confronted her." 18 At page 30: I am satisfied, as a matter of commonsense, and not a matter which required explicit expert opinion, that Ms Barron was negligent in not ensuring that the plaintiff could be adequately secured, if a situation of the kind which arose presented itself, in the course of the use of the bike. Ms Barron's assessment of the situation in terms of the emphasis on the plaintiff's capacity for self-sufficiency, did not adequately address the other considerations, to which, as a professional, she should have given proper weight, including the fact that she was dealing with a woman of advanced age, suffering osteoarthritis in her non-operated knee, in fact as I noted earlier, of a more serious extent than the osteoarthritis which had existed in the knee which had just been the subject of surgery. That therefore she was dealing with a woman who clearly, however well she may have progressed from the time of the operation, was potentially unstable. Therefore, there was a real possibility, and one that should have been taken into account, that at a crucial moment in the course of the use of the bike, the plaintiff would have found a problem with relying entirely on her left leg, and therefore have either inadvertently or deliberately resorted to placing weight on the right. These were possibilities that should have been at the forefront of Ms Barron's mind and she should not have discounted them on the basis that she was dealing with a plaintiff who was both making good progress and a reasonably self-sufficient and sensible person. 19 Regrettably, there must, in my view, be a new trial in all the circumstances. The relevant principles are not in dispute, and are to be found in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, and Kassem v Crossley & Anor [2000] NSWCA 276. 20 The particulars of negligence had not raised any issue based upon the weight discrepancy between the respondent and Ms Barron. Nor was that matter raised in final submissions. Nor was it addressed in the expert evidence, including the report and cross-examination of Mr Schneider. The closest matters came to this being hinted at was in a passage in the cross-examination of Ms Barron, who was a witness called for the defence before Mr Schneider was called to be cross-examined on his written evidence. The passages are at Black 108 to 110, and in particular, the following: Q. Wouldn't it have been wise to have an assistant with you, if she was to get onto the – just wait for the question – to get onto the bicycle for the first time since major surgery to her right knee? A. No not necessarily – in this case this patient was very independent, at a very high level, and certainly you wouldn't necessarily have two people. If somebody was much more unsteady or using different kinds of walking aids, then I may ask for a second person to assist, but there was no reason, based on her presentation, to think she would need an assistance of a second person, and certainly she didn't in getting on the bike. Q. In any event, you know that people are unpredictable, don't you? A. Everybody unpredictable. Q. Did you assess her weight before she got onto the bike? A. I didn't weigh her before she got on the bike, no. … ARDEN: Q. Did you assess your capacity to support her in the event that she might unexpectedly slump? A. Yes in the way I normally would. Q. You did? A. Not by formal assessment – by an estimation of her ability -- Q. You made an assessment – is that a "yes" or a "no". A. It's a qualified yes. … Q. Well if you didn't assess her, you say so, if you did assess her, please tell us – did you or did you not? A. Assess her? Q. Assess you and her and your ability to restrain her and support her in the event that she might unexpectedly slump – did you do it? A. There's no formal assessment for that. Q. I didn't ask you whether there was a formal one madam, I asked you did you do it? A. I evaluated her abilities --- Q. Did you assess her and yourself? A. I made an evaluation that in the most likely scenarios I would be able to support her, yes. Q. That was a conscious evaluation, was it? A. Yes. … Q. In any event, that's exactly what happened, wasn't it – she slumped and you couldn't hold her? A. Actually, no, that's not what happened. Q. You couldn't hold her, could you? A. She didn't slump, she stepped the wrong direction and I did hold her from the ground to prevent her from falling. Q. The terminology "slump" – we'll clarify that if you wish – but you instructed her to come off to the left, she went to the right -- A. Yes. Q. -- and she did fall and damage her leg, didn't she? A. No, she didn't fall -- Q. Her leg hit the ground, didn't it? A. No, it didn't hit the ground. Q. What did it hit? A. It, her foot was on the ground, and her body weight pushed her knee into a degree of flection, which injured her knee, but her knee didn't hit the ground and nor did she. Q. I didn't say her knee hit the ground, did I? 21 This cross-examination took place in the context set by the particulars, the opening address and the issues joined, to the extent that they were joined, in the exchange of written reports by the experts. In my view, this passage in the cross-examination of Ms Barron did not squarely raise the issue upon which the trial judge proceeded to decide the case. In particular, the questioning of Ms Barron did not open up the issue of Ms Barron's own weight and strength, or the issue of her capacity, based upon training or experience, to handle a lady of the respondent's size in the particular circumstances. 22 Ms Barron was a trained physiotherapist of some years' experience. There was no expert evidence suggesting that in the circumstances presenting two people needed to be present to deal with eventualities, certainly the eventualities as described in Ms Barron's evidence. The respondent was a lady fully in possession of her faculties. She had mobility difficulties, obviously, but she was perfectly capable of understanding and dealing with instructions. Had the issue that became critical been opened up in the particulars, or the opening address at trial, or even possibly in closing address, the matter might have been different, and the injustice to the defendant might have been avoided. At the very least, this Court would (in that event) have been able to assess the miscarriage question against the background of whatever protests counsel for the defendant had raised at trial. Counsel would then have had to decide – if the issue had surfaced squarely - whether or not to seek an adjournment to obtain additional expert evidence, or at least to address the matter in examination of his expert, Mr Schneider. 23 In my view, the cross-examination in the context was insufficient to put that issue on the table, and insufficient to justify the trial judge proceeding to rely upon his observation of the weight of Ms Barron and his "commonsense" assessment of the situation. 24 Accordingly, the verdict for the plaintiff must be set aside. 25 Senior counsel for the appellant has submitted that a proper reading of the transcript at Red 23 that I have set out above, indicates that at the end of the day the trial judge was unable to resolve the conflict of evidence between the two witnesses. In those circumstances, he submitted, the moving party did not sustain the onus that rested upon her. 26 I do not accept that as a proper reading of the reasons for judgment. In any event, the very fact that there is and remains an acute ambiguity about those reasons on that critical issue presents difficulty for the appellant. 27 There regrettably has to be a new trial, which can proceed either on the basis of resolving what will presumably remain the conflict between the witnesses, and/or addressing the fallback approach adopted by his Honour, but in circumstances where both parties know that it is coming. 28 In directing a new trial I would not wish to be taken to be relieving the plaintiff of the obligation to reformulate the particulars so as to leave the parties in no doubt as to what matters are to be litigated at the new trial, if it proceeds. 29 The question then arises as to whether there should be a new trial on all issues. We were taken to the findings on damages. Those findings were not challenged in the appeal. That, in itself, does not resolve the question of the scope of the new trial, but it is part of the focus at which I look at that issue. 30 We were informed, and I accept, that there was some cross-examination of the respondent along the lines that she may have been exaggerating some of the consequences of the accident. It is undoubtedly the case that the accident caused significant and permanent injury. When one looks at the reasoning supporting the particular award of damages and its components, I really do not have any impression that credibility figured much at all. 31 The new trial is, of course, based upon the procedural unfairness that emanated and it would only be, in my view, if we thought there was a real possibility that that procedural unfairness had itself impacted on the damages assessment, that it would be necessary to order a new trial on all issues. 32 I am quite satisfied that procedural unfairness confined itself to the liability finding. There is nothing about the reasoning on the damages issue that causes me any disquiet. To award a new trial on all grounds would add to the cost of the proceedings, without any real or legitimate benefit. It would not be enough that a new trial might present the defendant with opportunities to cross-examine the plaintiff on her credit, and thereby attack the damages award. I think that is putting the cart before the horse. 33 So for those reasons, I propose that the verdict and judgment be set aside, that there be a new trial on all issues, apart from damages; that the costs of the first trial should be at the disposal of the judge hearing the second trial. I propose that the respondent pay the appellant's costs of the appeal, but that she have a certificate under the Suitors' Fund Act, if qualified. 34 HODGSON JA: I agree with the orders proposed by the President, and with his reasons. 35 The basis of finding of negligence by the primary judge was that Ms Barron should have appreciated that, because of her own slenderness and the weight of the respondent, she needed the help of another person in getting and assisting the respondent to dismount from the exercise bike. That basis of negligence was not raised specifically in the particulars given in the statement of claim or elsewhere, was not suggested in any expert reports by the respondent and was not raised in opening or in any evidence in chief led by the respondent. 36 When Ms Barron gave evidence, questions were asked in cross-examination whether it would have been wise to have an assistant, whether she assessed the respondent's weight, and whether she assessed her ability to restrain and support the respondent if she slumped. The only other possible reference in evidence to the basis of the primary judge's finding was in cross-examination of the appellant's expert, where it was put that it would have been difficult to restrain the respondent if Ms Barron did not have hold of her. 37 However, the appellant's expert was not asked either by the appellant's counsel or the respondent's counsel to address the question of whether the weight of the respondent and the slenderness of Ms Barron could mean that Ms Barron was negligent in not having an assistant. 38 The basis on which the primary judge found negligence was not relied on in the final submissions. 39 In those circumstances, in my opinion, the issue on which the primary judge found for the respondent was not adequately raised by the respondent, so that there was a denial of procedural fairness. In my opinion, that is made clear by the consideration that it could not be said that the point was sufficiently raised to alert the appellant's counsel to the need to raise with the appellant's expert, when he subsequently gave evidence, the question of whether the weight of the respondent and the slenderness of Ms Barron could mean that Ms Barron was negligent. 40 Accordingly, in my opinion, the decision on liability in favour of the respondent must be set aside, because of this denial of procedural fairness. 41 TOBIAS JA: I agree with the orders proposed by the President, for the reasons he has given. I also agree with the additional observations of Hodgson JA. However, I wish to add some comments of my own. 42 Apart from the procedural fairness issue relating to the difference between the respondent's weight on the one hand, and the slender nature of Ms Barron's physique on the other relied on by the primary judge as the basis for his finding of a breach of duty on her part, his Honour also found Ms Barron negligent upon the basis that "the plaintiff could [not] be adequately secured if a situation of the kind which arose presented itself in the course of the use of the bike". 43 His Honour then went on to refer to the osteoarthritis from which the respondent suffered in her left knee which was more serious than that which existed in her right knee which had been the subject of the surgery. He therefore found that Ms Barron was dealing with a woman who, however well she had progressed since the operation, was potentially unstable. 44 His Honour then said (Red 30R to U): Therefore there was a real possibility and one that should have been taken into account that at a crucial moment in the course of the use of the bike the plaintiff would have found a problem with relying entirely on her left leg , and therefore have either inadvertently or deliberately resorted to placing weight on the right (emphasis added) . 45 In my opinion, there was no basis for this finding, given that his Honour was proceeding upon the assumption that Ms Barron's evidence as to how the accident occurred should be accepted. 46 The President has already cited from Red 30 O - S, where Ms Barron's version of the facts, upon which the question of liability was determined by the primary judge, was that as the respondent slipped forward on the seat of the bike she went to the right instead of the left, and her right leg gave way. The position might have been different in terms of the finding to which I have referred at Red 30 had in fact the respondent dismounted from the bike as she had been instructed thereby placing weight on her left leg which had then given way, but that is not what occurred. There was no suggestion by the respondent of any fear on her part that she could not safely dismount onto her left leg. This is not surprising given her version of how the accident happened. 47 The respondent's senior counsel sought to justify this part of the primary judge's finding to which I have referred upon the basis that the respondent found difficulty in pushing with her left leg the pedal from its upright position. It is true that that was her case, but it was not the factual basis upon which his Honour was deciding whether Ms Barron had breached her duty of care. 48 For these reasons, in my view it was not open to his Honour to make the finding that he did at Red 30R - U. There was no evidence that there was any relevant problem with the respondent's left leg which, on the basis of Ms Barron's version of events indicated that the latter had failed in her duty of care, given that it was the respondent's right leg which gave way and not her left leg. 49 For these additional reasons, I agree with the orders proposed by the President. 50 MASON P: For the reasons given, the orders of the Court will be as I have indicated. ********** 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.