Bowden v North Eastern Health Care Network
[2001] VSCA 7
•1 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6859 of 1999
| BRIAN RUSSELL BOWDEN |
| Appellant |
| v. |
| NORTH EASTERN HEALTH CARE NETWORK |
| Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 February 2001 | |
DATE OF JUDGMENT: | 1 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 7 | |
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Personal injuries – Determination of single judge that plaintiff had not established negligence on part of respondent’s servant – Appeal on basis that on facts found and undisputed, judge should have found negligence – Appellate court entitled to determine for itself whether negligence was established – Question as to the use to be made of admissions against interest by respondent’s servant discussed – Appeal allowed and judgment entered for appellant for damages to be assessed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. C.C. Dane, Q.C. with Mr. A.D. Clements | Clements Hutchins & Co. |
| For the Respondent | Mr. J.A. Riordan | Phillips Fox |
WINNEKE, P.:
This is an appeal brought by Brian Russell Bowden ("the appellant") against the judgment and orders made by the County Court on 2 September 1999 in a personal injuries claim made by the appellant against the North Eastern Health Care Network ("the respondent") in its capacity as the occupier of, and the organization responsible for the operations of the Preston and Northern Community Hospital ("the hospital').
The appellant had sued the respondent, by writ issued out of the County Court on 20 February 1997, claiming damages for injuries alleged to have been suffered on 27 January 1997 whilst he was attending as a patient at the hospital. At the trial he claimed that he had suffered injury to his left knee when he was struck by a "patient's trolley" which was being pushed by one Bell, a servant of the respondent. At the time he was seated on a bench in the corridor of the Emergency Section of the hospital waiting to be called for a chest X-ray. Whilst he was seated, the trolley wheeled by Bell along the corridor struck him on the left knee, jamming it against the casing of the seat. The corridor was about 2.5 metres wide and the trolley being pushed by Bell was about one metre wide and two metres long. The trolley had pivoting wheels, and the appellant's allegation was that, as it was being pushed towards him, having come around a right-hand curve in the corridor, the trolley had veered to its right and had struck him a sharp blow on the left knee which had led to later complications. The case made by the appellant was that Bell was negligent in his control of the trolley and that the respondent was vicariously responsible for that negligence. No case was put on any other basis; for example, that the respondent was in breach of its duty as an occupier, by encouraging patients to sit in the narrow corridor when it knew that trolleys were being manipulated along the corridor in close proximity to where the patients were seated.
As a result of the trolley striking the appellant, a mobile telephone which was resting on his lap had fallen to the corridor floor, cracking its casing. Bell had immediately apologized to the appellant, conceded his fault, and promised to pay for the cost of repairs to the telephone. On the day following the incident Bell had completed an "incident report" in which he described the events in a manner which, as the judge found, was inaccurate.
In the event, the judge concluded that the evidence was insufficient to enable him to draw any inference of want of care on the part of Bell which was a cause of the appellant's injuries. He, accordingly, gave judgment for the respondent. The appellant has appealed, contending that on the facts found, and those not in dispute, his Honour was in error in failing to draw the inference that Bell was negligent. It is accepted that this Court is in as good a position as was the trial judge to determine whether such an inference is warranted.
His Honour concluded that, on the issue of liability, he could get little assistance from either the appellant or Bell. The appellant did not observe the approach of Bell's trolley and the first he knew of the circumstances was when the trolley struck him. His Honour regarded Bell as an honest witness but a poor one who appeared to the judge to be "close to incapable of understanding what he was asked."
Notwithstanding the difficulties which the judge professed to have in interpreting the evidence, he was able to find the essential ingredients of the occurrence. He was satisfied:
"... that the trolley hit [the appellant] on the knee when he was seated on a bench in a corridor along which the trolley, a metre by two metres, was being propelled by Mr Bell who was on the opposite side of the trolley to where [the appellant] was seated. In the course of going past him, Mr Bell was altering his position in relation to the trolley which, at that moment, veered to the right ... trapping [the appellant's] knee."
This finding was based on the evidence in chief given by Bell; and from questions which his Honour asked "in clarification" towards the end of Bell's evidence. In his evidence in chief, Bell said:
"I had the trolley at the foot-end ... I came around the corner, straightened up. There was a gentleman sitting on the seat. As I moved back to take control of the top of the trolley – back here at the head of the trolley, the wheels moved a little bit and hit that seat ...that this gentleman was sitting on.:
Q."Let me ask you about that ... having turned the corner you changed your position in relation to the trolley, is that right?"
A."Yes, that's correct."
...
Q."So, you're moving and the trolley's moving, but you're moving to take up a position towards the rear of the trolley?"
A."Yes."
Q."How often have you done that?"
A."Quite a few times – a lot of times."
Q."Is there anything unusual about that sort of movement in terms of hospital practice?"
A."Not really, I've done it quite often over the years."
Q."What part of the trolley did you take hold of at the rear end?'
A."The side rail of the trolley."
Q."And you've said that during the course of that there was a veer in the direction of the trolley?"
A."Just a slight movement of the trolley, yes."
There was some confusion which arose because of the use of terms such as "foot", "head", "front" and "rear" of the trolley. It appeared that Bell was using the terms "head" and "foot" by reference to the position of the hypothetical patient on the trolley. Towards the end of his evidence. his Honour sought to clarify:
H.H."That's what I was trying to get clear. Earlier I thought you were telling me that you were towards the rear of the trolley ... as you turned the corner. So as you turned the corner, you were towards the head of the trolley, were you?"
A."No, I was at the foot of the trolley ..."
H.H."... well then, if you were at the foot of the trolley as you came around, it would seem to me to be impossible for you to get any further back, as if you're going to move your position, you must have been moving forward; am I wrong about that?"
A."No, I was at the left-hand side of the bottom of the trolley ..."
H.H."You just told me the right-hand side."
A."I'm sorry, it was on the left-hand side ..."
H.H.The left-hand side ... That's what you said in the first place."
A."Yes, that's what I stated ... in the first place."
H.H."Now, you're at the left-hand side of the trolley?"
A."Yes."
H.H.:And pushing it?"
A."Yes, sort of ... with my right hand."
H.H."And at that stage as you turned the corner – you were turning to the right?"
A."Yes."
H.H."And you were on the left?"
A."that's right."
H.H."And then, having turned the corner, you went to alter your position in relation to the trolley?"
A."That's right."
H.H."By moving which way?"
A."To the back, to the rear of the trolley."
H.H."To the rear of it, further back?"
A."Yes, further back from the trolley, yes."
H.H."And it was at that stage that it veered slightly to the right?"
A."To the right, yes."
His Honour also found that, following the collision with the appellant, Bell admitted that he was at fault, and offered to pay for the damage to the mobile telephone. He further found that the trolley:
"was of the sort commonly employed in hospitals .... It has swivelling wheels. It is not powered. It has to be pushed. It is steered by the person pushing it applying pressure to guide the wheels to turn it in the desired direction."
Notwithstanding the combination of circumstances which his Honour had found and those which were not in dispute, he felt himself unable to conclude that they gave rise to an inference of negligence on the part of Mr Bell in his control of the trolley. His Honour said:
"The fact that such a vehicle came in contact with a patient whilst being propelled through the public section of a public hospital ... does not appear to me anyway to be an incident of such a description that its very happening carries with it the implication of negligence on the part of the person propelling the trolley.
To use the jargon of this type of action, it is not to my mind a situation invoking the Latin tag 'res ipsa loquitur' at all. I would be slow, in fact I would refuse to agree that evidence of contact between the trolley and persons sitting in a corridor to amount to evidence which itself gave rise to an inference of negligence on the part of the person pushing it. So I look to the evidence to see what evidence there is, that this took place because of some failure on the part of the hospital through its employee, Mr Bell, to take the requisite care to avoid injuring [the plaintiff]."
His Honour then noted that the only way in which the case was being put was on the basis that Mr Bell was negligent. He continued:
"Now, the fact that a man is a bad witness does not mean that his conduct was culpable in that he was negligent in bringing about an incident which caused injury to another person. I hasten to interpolate at this point that [the plaintiff] was innocent; he was doing nothing to harm anybody. He was not doing anything outlandish, he was simply sitting there, and no one could blame him.
But can one find in the evidence, apart from the fact that there was a blow to the knee, evidence of negligence of Mr Bell? As for anybody seeing what he did, there was no-one but himself. The account which he gave to me in court ... was not an account which I would say disclosed readily any failure on his part to take the requisite degree of care. [The plaintiff's counsel] said first of all that if the case was not a 'res ipsa' situation, it was very close to it, but that to my mind does not get us any further. If it is not, it is not. He said that the circumstances were such that the duty imposed upon the defendant rose to the pinnacle of the requirement to take care for the safety of others, in particular patients ... occupying the premises. This is not a submission that I feel I can readily accede to. It appears to me that the duty imposed ...is the same duty ... as the duty of care in other situations, namely a duty to take reasonable care in the prevailing circumstances so as to avoid unnecessarily exposing someone to the risk of injury ....
The circumstances may impose requirements upon those [hospital] servants .. to be very particular in what they do and to pay close attention to what they are doing. That does not alter the duty. It simply says that the care requisite imposed upon them by the circumstances may be onerous. For example ... in Mr Bell's case – propelling an object through the corridors where patients ... are likely to be found which, if it comes in contact with them has the capacity to injure them.
...
So care needs to be exercised .. for the duty to take reasonable care to be discharged. ... To that extent I believe that [plaintiff's counsel] was on the right track when he was saying that there is – in the circumstances to be found here – a requirement to pay particular attention."
His Honour then referred to the fact that Mr Bell's "accident report" was inconsistent with his evidence and that that was "a matter of credibility of which a witness such as Mr Bell did not have much anyway." His Honour then recited the facts which he found from the evidence, including that given by Bell to which I have earlier referred. These included the finding that "in the course of going past him (i.e. the appellant), Mr Bell was altering his position in relation to the trolley which at that moment veered to the right ... trapping [the appellant's] left knee."
His Honour next turned to "the factor which I have left [out] of that description ... that subsequent to this happening, and indeed here, Mr Bell said that he believed that it was his fault that this happened. I accept the evidence that he did on the spot acknowledge to [the plaintiff] that it was ... his fault." His Honour said that such an acknowledgment "does not of itself draw one to the conclusion that there is evidence from which one could say that you were satisfied ... that there was negligence on the part of Bell. A statement of that sort made in that type of circumstance I would take to be first of all an apology for hitting the knee ...." His Honour said that he would be unwilling to draw the conclusion "that what took place immediately after the blow was an admission of fault in the sense that Lord Atkin had in mind in describing the concept of negligence." In his Honour's view it was the "sort of thing that I would expect anybody ... to do as soon as something of that sort happened ...." Thus, his Honour said he would not draw the inference that he was making an admission of fault in the sense that he was admitting negligence. Nor, in his Honour's view, was the offer to pay the bill for repairs to the telephone.
For the reasons which he gave, and to which I have found it necessary to refer in detail, his Honour concluded that he could not infer from the evidence before him that Mr Bell was negligent in his handling of the trolley.
On this appeal, counsel for the appellant submitted that, on the facts which were found, and those not in dispute, his Honour should have inferred that it was more probable than not that collision between the trolley and the appellant was due to negligence on the part of Mr Bell. The facts found, and those undisputed, were that the trolley was being pushed towards a narrow gap in the corridor between the wall on the left-hand side and the seated appellant on the right; that it was being pushed towards the appellant whom Bell could see and knew was there; that the trolley was "not a small one" and had "swivelling" wheels which, to the knowledge of Bell, would permit it to behave erratically unless control of it was maintained by its operator by the administration of pressure; and that it veered to its right into the appellant when Bell "changed his position in relation to the trolley", and that immediately following the collision Bell acknowledged fault and offered to pay the cost of repairs to the appellant's telephone.
These facts, when viewed as a whole, so counsel submitted, bespeak negligence on the part of the trolley operator because an experienced operator (which Bell was), negotiating the trolley in circumstances which, so his Honour found, required him to pay "particular attention", chose the time when he was approaching the narrow gap between the wall and the appellant to alter his position in relation to the trolley thus permitting it to veer into the appellant. That inference is inescapable, counsel submitted, because the trolley only veered from its intended path when Bell changed his position in relation to it. It was not to the point that his Honour found Bell to be an unsatisfactory witness because his Honour was able, notwithstanding, to find the facts which he did. Counsel submitted that this Court should itself draw the inference which his Honour was not prepared to draw and give judgment for the appellant for damages to be assessed.
On the other hand, counsel for the respondent submitted that the trial judge had correctly concluded, on the facts found and undisputed, that the appellant had not established on the balance of probabilities that there was any conduct on the part of Bell which amounted to negligence. He pointed to the evidence of Bell that, at the time, the Emergency Department of the hospital was "reasonably busy", that Bell had kept his right hand on the trolley when changing his position, that he had just come around the corner and that he had performed the movement of "changing position" on many previous occasions. He submitted that the judge correctly enunciated the principles which he had to apply; and that the judge correctly declined to accept that what Bell had done and said after the collision was probative of a want of reasonable care on his part. He said that this Court should not lightly differ from the trial judge's conclusion that an inference of negligence on the part of Bell was not open on the facts found and undisputed.
Although I would normally hesitate to interfere with an inferential conclusion drawn by this very experienced trial judge, I agree with the appellant's counsel that this was a case where, on the facts which he found and those not disputed, the only proper inference which his Honour could have drawn on the balance of probabilities was that Bell was negligent in his handling of the trolley. Where the facts are not in dispute, this Court's capacity to interfere with the trial judge's finding is not in doubt. The principles were stated by Gibbs, A.C.J., Jacobs and Murphy, JJ. in Warren v. Coombes[1] in the following way:
"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide upon the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink form giving effect to it. These principles are, we venture to think, not only sound in law, but beneficial in their operation."
In this sense, the appellate court is in a different position from that in which it finds itself in entertaining an appeal from a jury's verdict, which is unattended by reasons which a judge must give and which, for traditional and practical reasons, is as "inscrutable as the sphinx"[2]. As was said in Warren v. Coombes[3]:
"Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary, we should have thought that the trial judge can enjoy no significant advantage in deciding such a question."
[1](1979) 142 C.L.R. 531 at 551.
[2]per Lord Denning, M.R., Ward v. James [1966] 1 Q.B. 273 at 301.
[3]supra, at 552 per Gibbs, A.C.J., Jacobs and Murphy, JJ.
These principles have been applied in England[4] and have recently been restated by Kirby, J. in State Rail Authority (N.S.W.) v. Earthline Constructions Pty. Ltd. (In Liq.)[5]. They apply in this State, where this Court is given the power "to draw inferences of fact and to give any judgment which ought to have been given or made"[6].
[4]Benmax v. Austin Motor Company Ltd [1955] A.C. 370.
[5](1999) 73 A.L.J.R. 306 at 325-7.
[6]Rule 64.22(2) of the Supreme Court (General Civil Procedure) Rules 1996.
For my own part, I believe that this is a case where this Court – even paying due respect to his Honour's view – should itself conclude on the facts found and not disputed that the proper inference to be drawn is that Mr Bell was negligent in his handling of the trolley, and that such negligence was a cause of the appellant's injuries. In circumstances where particular care and attention was required, namely when the trolley was about to be pushed into the narrow gap between the corridor wall and the appellant, it seems to me that its operator fell below the standard of care which was required of him when he chose that moment to change his position of control of the trolley. This experienced operator must have foreseen that any release of the pressure of his grip on the trolley would allow it to move unpredictably; which as his Honour found it did by veering into the appellant. It does not seem to me to matter much whether Mr Bell was changing his position vis-à-vis the trolley to maintain control or to "take control", as he himself said. In either case, his decision to change his position was made at a most unpropitious time, depriving him of the capacity to steer it or to slow it or stop it. In these circumstances, it was not surprising that he immediately acknowledged fault. The fact is that the trolley veered whilst he was changing his position and the inescapable inference is that it did so because of that fact. Although his Honour found that the trolley veered while Mr Bell was changing his position, he appears to have given little or no weight to what seems to me to have been that critical finding when concluding that he could not infer negligence. Rather, all his Honour said was that he would not be prepared to infer negligence from the mere fact of contact between the trolley and the appellant and that Bell's account was not one "which I would say disclosed readily any failure on his part to take the requisite degree of care." Although his Honour was at pains to say that he found Bell an unsatisfactory witness, that did not preclude him from making the finding that the trolley had veered from its intended course and struck the appellant "at the moment" when Bell was altering his position. His Honour, however, made no mention of that fact when concluding that Bell's account did not "readily disclose" a failure to take the requisite degree of care. His Honour was correct to conclude that this was not a "res ipsa loquitur" case because the happening of the collision was fully explained by the facts which he had found[7]. It was, I think, the failure to pay any or any proper regard to his finding that Bell had decided to change his position in relation to the trolley at a time when particular attention to its management was called for which was the genesis of the erroneous conclusion which I believe that he made.
[7]cf. Schellenberg v. Tunnel Holdings (2000) 74 A.L.J.R. 743.
It was submitted on this appeal that his Honour was in error in excluding from his consideration, when considering whether an inference of negligence could be drawn, the fact that Bell had made an immediate acknowledgment of fault and offered to pay, and did pay, for the damage to the mobile telephone. Having regard to the view to which I have come, it is strictly unnecessary for me to decide the point. What I have to say is said in deference to arguments put by counsel in this Court.
The evidence of what Bell said and did following the accident was tendered without objection. It seems to have been admitted and treated as if it were a form of admission by conduct on the part of Bell, from which a conclusion adverse to the respondent could be drawn, notwithstanding that Bell was not, and never had been, a party to the proceedings. The question arises whether any such admission is capable of being used against the interests of the respondent employer[8]. The better view would seem to be that the evidence could not be used for the purpose for which it was tendered, but was capable of being considered as one of the circumstances surrounding the accident to be taken into account in reaching a conclusion as to the manner of its occurrence – that is, as one of the circumstantial facts upon which the ultimate issue in the proceedings is sought to be proved[9]. In this case the appellant's counsel, both on trial and appeal, submitted that the evidence of Bell's acknowledgment of fault, offer of payment and payment for repairs to the appellant's telephone amounted to an admission, by conduct, upon which the judge could and should have concluded that the accident had been caused by negligence for which the respondent was liable. Indeed, the appellant's counsel submitted to this Court that his Honour was in error in not drawing such a conclusion, even though it would involve the attribution to Bell of an admission incorporating a legal standard. In support of this submission counsel relied upon authorities such as Allen v. Roughly[10] and Grey v. Australian Motorists and General Insurance Co. Pty. Ltd.[11], which were cases in which the court had been prepared to act on clear written admissions, involving matters of law and adverse to their interests, made by parties to the litigation. Such admissions may be capable of being used as evidence upon which the court can reach a conclusion on the ultimate issue in circumstances where the admission has been made by a party to the litigation. But, even then, much depends upon the circumstances, and it has more recently been said that the law upon the question whether a party can be taken informally to have admitted a conclusion which depends upon a legal standard is still "unsettled"[12]. However, where the informal admissions relied upon have been made by a person who is not a party to the litigation, it would seem that they cannot be used as providing an evidential basis, by themselves, for drawing a conclusion of law, or mixed law and fact, adverse to the interests of a person who is a party to the litigation. They can only be used, as I have already stated, as a circumstantial fact which, depending upon the weight attributed to them, might, when combined with other facts, assist the tribunal in reaching its conclusion on the ultimate issue[13].
[8]cf. Brown v. Ware Rural District Council [1939] 2 All.E.R.688; Cross on Evidence (Australian Ed.) Vol.1 at [33545].
[9]cf. Holloway v. McFeeters (1956) 94 C.L.R. 470 at 476 per Dixon, C.J.; Jones v. Sutherland Shire Council [1979] 2 N.S.W.L.R. 206 at 221 per Mahoney, J.A.
[10](1955) 94 C.L.R. 98 at 141-2, per Kitto, J.
[11][1976] 1 N.S.W.L.R. 669 at 684-5, per Mahoney, J.A.
[12]Eastern Express Pty. Ltd. v. General Newspapers Pty. Ltd. & Ors. (1992) 35 F.C.R. 43 at 68, per Lockhart and Gummow, JJ.; see also F.A.I. Traders Insurance Company Ltd. v. Savoy Plaza Pty. Ltd. [1993] 2 V.R. 343 at 351 per Brooking, J.
[13]cf. Jones v. Sutherland Shire Council, supra at 231-2.
In this case the learned judge considered the evidence of what Bell said and did following the collision between the trolley and the appellant in isolation from the other facts which he had found, and concluded that they were an insufficient evidential basis for drawing a conclusion adverse to the interests of the respondent. It is, perhaps, unfortunate that his Honour did not consider the evidence of Bell's reaction to the collision in conjunction with the other facts which he had found. No criticism can be levelled at him for failing to do so because he was asked to treat them as admissions which would, by themselves, support a conclusion adverse to the respondent. In any event, his failure to look at the evidence as part of the circumstances upon which such a conclusion could be made is inconsequential having regard to the view to which I have come that the other facts which he had found should have led him to the conclusion that Bell was negligent in his handling of the trolley.
For the reasons stated, I would allow the appeal, set aside the judgment given below and give judgment for the appellant for damages to be assessed and remit the matter to the County Court for the purposes of assessing those damages. I should say that this is regrettable because it seems to me that the costs of the litigation must be getting to the point where they will outstrip the value of the claim.
PHILLIPS, J.A.:
I agree with the President.
CHARLES, J.A.:
I agree with the President. I would add only this. The judge said that the fact that the trolley came into contact with a patient whilst being propelled through a passageway near an emergency ward did not appear to him to be an incident of such a description that its very happening carried with it the implication of negligence on the part of the person propelling the trolley.
The trolley was a metre in width. It had swivelling wheels which, no doubt, on occasions have a mind of their own. But Mr Bell, the hospital employee, had long experience in pushing such trolleys, "many many years and hundreds of times" as he accepted in evidence. He said that he saw the plaintiff on the seat as he came around the corner and straightened up. Thereafter as he changed his position in relation to the trolley, it swerved into the plaintiff's leg.
In my view Mr Bell on the evidence had the opportunity to avoid a collision with the plaintiff either by steering the trolley past him (if there was room) or of slowing the trolley and asking the plaintiff to move out of his way. He did neither. Mr Bell's long experience in the use of such trolleys should have made him aware whether or not he was able to control the vehicle's path in the narrow passageway. If he was not able to do so, he should in my view have slowed the trolley, if necessary to a standstill, to enable the plaintiff to move out of the trolley's pathway.
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