Smith v Sydney West Area Health Service [2008] NSWCA 267

New South Wales Court of Appeal

CITATION: Smith v Sydney West Area Health Service [2008] NSWCA 267 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 October 2008 JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Macfarlan JA at 1

EX TEMPORE JUDGMENT DATE: 22 October 2008

DECISION: See para 20

CATCHWORDS: Negligence – hospital nurse injured in a two-person transfer of an elderly patient – injury suffered when nurse bore full weight of falling patient – risk of patient falling or losing balance reasonably foreseeable

CATEGORY: Principal judgment

CASES CITED: Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES: Denise Allyn Smith (Appellant) Sydney West Area Health Service (formerly Wentworth Area Health Service) (Respondent)

FILE NUMBER(S): CA 40771/07

COUNSEL: M McAuley (Appellant) J E Maconachie QC; P Khandhar (Respondent)

SOLICITORS: Everett Paull (Appellant) DLA Phillips Fox (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1172/07

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 24 August 2007

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40771/07

BEAZLEY JA GILES JA MACFARLAN JA

Ex tempore 22 October 2008 Denise Allyn Smith v Sydney West Area Health Service (formerly Wentworth Area Health Service) Judgment 1 THE COURT: The appellant was injured on 27 January 2003. At the time, she was performing her duties as a nurse at Nepean Hospital (the hospital). The appellant has had some 30 years' experience as a nurse. The trial judge, his Honour Garling DCJ, accepted the evidence of the appellant, describing her as "an excellent witness". 2 The following facts were recorded by his Honour, at pp 1-2 of his judgment, as being substantially not in dispute: "… the [appellant] was employed by the [respondent] at the Nepean Hospital as a nurse in a ward which dealt mainly with patients who had cardiac problems. She started work at about 7am on 27 January 2003. It was quite a busy morning … During the morning a wardsman, Mr Gaul, asked the [appellant] to assist him in the transfer of another patient from a shower chair to an easy chair. That patient, Mr Netherby, was not really known to the [appellant]. This was the first time she had met him … she had given him breakfast and perhaps some medication. She recalled that he was about eighty-four years of age, five feet ten inches in height and weighed about ninety kilos … [or] a little less … [she] did describe him as frail and doddery. The [appellant] went to assist the wardsman. Mr Netherby was sitting in the shower chair in his pyjamas. He had already been showered and dressed. The chair is on wheels. She assisted the wardsman to lift Mr Netherby from the shower chair. Each took hold of an arm and pulled him to a standing position. He was then weight bearing and the [appellant] was holding onto him. The wardsman let go of the patient and moved the chair away. The [appellant] was the only one holding Mr Netherby but he was weight bearing. He then started to fall. He pulled the [appellant] forward and she tried to hold him. She described what happened as 'his legs crumbled'. She held onto him, she twisted her back and felt pain in her back. The wardsman came to her assistance. They placed Mr Netherby into his easy chair." 3 The appellant's claim, as it is advanced in this Court, is that Mr Gaul was guilty of a casual act of negligence in letting go of the patient, either at all, or at least without first informing her that he was proposing to do so. 4 The trial judge rejected the appellant's claim. There was no issue as to the hospital's vicarious liability should Mr Gaul have been negligent. However, his Honour was not prepared to draw the inferences he considered were necessary if negligence was to be established. His Honour said, at p 8: "The next question was whether or not Mr Gaul was negligent. It is not disputed that the hospital would be vicariously liable for his negligence. If Mr Gaul knew that there was a problem with Mr Netherby and that he may well drop or crumble to the floor if his legs gave way and that, from time to time, his legs did give way and he let go of him and walked away he would be clearly negligent. However, as I have indicated, I cannot draw that inference." 5 His Honour then said, at p 9, "The law on negligence is quite straightforward" and asked: "Was it foreseeable that, if this man was liable to crumble or fall to the floor and if he let go of him and left him with the [appellant] and he did crumble or fall to the floor, the [appellant] could be injured? The obvious answer is yes, it was foreseeable. Was there another system available? The obvious answer is yes, there were several." (Emphasis added) 6 His Honour noted that the transfer of this patient was a normal part of a nurse's work and that this type of move was not unusual. His Honour then said, at p 10: "… I have no evidence whatsoever that this man was liable to collapse or fall to the ground, then I find great difficulty in finding that there was a duty upon either the wardsman or the hospital to provide another nurse, that is a third nurse because you already have two there, or that you have a policy that you never let go of a patient who can weight bear, who can stand with someone holding him, or assisting him, and if you have such a person I could not find that you would have to put those systems I spoke of in place." 7 His Honour concluded: "That being so, I am in a very difficult position because really this case depends, in my view, on evidence and inferences which are simply not available to me because I know nothing of Mr Netherby and therefore I cannot make assumptions as to what the wardsman could or should have known and therefore I cannot see how the [appellant] could succeed." 8 The respondent contended that this finding was correct and there was no evidence that the position that the appellant was in, with Mr Gaul having moved away from the patient, was other than proper and appropriate. It further contended there was no evidence of the standards that informed the basal question of reasonableness, no evidence that the system of work in place was not reasonable, and no evidence that two people were needed to be supporting the patient at all times 9 It was submitted, likewise, that there was no evidence in respect of the patient's individual circumstances that would have made the risk of injury foreseeable. Nor was there anything to suggest prospectively that Mr Gaul regarded the patient as at risk of falling if not supported by others. It was asserted that the patient had a capacity to stand. 10 The evidence in respect of the respondent's liability was the evidence of the appellant and a statement of Mr Gaul, made on 17 March 2003, shortly after the accident. It is convenient to refer to Mr Gaul's statement first. He had little recollection of the incident but did remember "transferring the patient". He continued: "I do remember it was a difficult transfer because of his mobility. He wasn't all that mobile." 11 The undisputed parts of the appellant's evidence have already been referred to. The appellant was cross-examined as to the assessment she had made of the patient. Having regard to that assessment, it was suggested that what happened, that is, Mr Gaul moving away from the patient and leaving her as the sole person holding him, was reasonable. The evidence was as follows: "Q: Did you think he was a fall risk? A: We stood him up and he bore his own weight.