Chan v Barter & Barter No. Scciv-03-136

CHAN v BARTER AND BARTER
[2003] SASC 345
Full Court: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Prior J. There is nothing that I wish to add to those reasons.
PRIOR J: On 9 January 1997, the elderly appellant suffered a fall at a nursing home conducted by the respondents when she was being moved from a chair to a shower chair. The respondents were sued for damages. The claim made against them was that the respondents were vicariously liable for the alleged neglect of an employee, Mr Eastwood and, alternatively, for failing to instruct or appropriately supervise the transfer procedure which gave rise to the fall.
The appellant patient, Madam Chan, had a partially paralysed left side. In the statement of claim it was alleged that, on the occasion of the fall, Madam Chan was supported on her right side, when she should have been supported on her left and was moved towards her weaker or left side when Mr Eastwood “should have moved towards her right or strong side”. There were further complaints. It was claimed that lifting equipment or two or more people should have been used to lift Madam Chan. It was also said that Mr Eastwood failed to exercise due care and diligence in all the circumstances. He should have caught Madam Chan when she fell, or otherwise assisted her to “properly protect support or hold” her.
The evidence clearly established that subsequent to that fall Madam Chan sustained extensive intra-cranial haemorrhaging, which resulted in residual brain damage, with dysphasia, an inability to swallow, paralysis of the left upper limb and both lower limbs. The claim for damages included a claim that as a result of the fall Madam Chan required full-time personalised nursing care that care being provided by her daughter, at home and not in a nursing home. The claim for damages also sought an award against the assertion that Madam Chan’s enjoyment of life had been severely diminished by what happened at the nursing home.
A District Court judge found the respondents’ carer was not negligent in the manner in which he attempted to transfer Madam Chan from her chair. The trial judge’s view was that Mr Eastwood was qualified and competent, not only to transfer Madam Chan but also to do it alone and unsupervised. His Honour found that Madam Chan fainted and “in a state of unconsciousness slipped suddenly from his grip falling to and striking her head on the floor”. The trial judge found there was no fault or breach of duty of care by either Mr Eastwood or his employers, the respondents. The trial judge indicated that if, contrary to his view, negligence had been made out, the claim for damages would be limited to a sum for non-economic loss and an amount for past and future special damages. The trial judge found that the cost of past and future home care, provided at home by Madam Chan’s daughter, was not reasonably incurred bearing in mind the lack of evidence of significant health benefits to Madam Chan by reason of that care and the availability of government-funded nursing home care of a high standard.
In dismissing the claim, the trial judge found that the fall occurred through no fault of either Eastwood or his employers. His Honour accepted the evidence of Eastwood as truthful and reliable. That finding was arrived at notwithstanding a vigorous attack upon Eastwood’s credibility during the course of the trial. Of particular significance was the initial report of the incident, given by Eastwood on the day of the fall. In that report, Eastwood said that he was assisting the appellant “to transfer from her chair to a shower chair” in response to a request from her to go to the toilet. The report said that Madam Chan:
“was standing holding her quad with her left hand while I supported her under her right arm. She appeared cooperative and stable. Suddenly she appeared to lose consciousness and melted, falling to the ground suddenly.”
The report then went on to describe the fall as heavy, with Madam Chan hitting her left shoulder, then the side of head, lying motionless on the ground “still breathing, fluttering her eyelids”.
The appellant’s daughter was in Malaysia at the time of her mother’s fall. When she returned to Australia and the family had decided that the appellant would be looked after by her daughter, she attended at the nursing home. She read the first incident report, noting that it spoke of her mother having her quad stick in her left hand and being assisted on her right side. From this, the daughter concluded that her mother was being transferred incorrectly. The error was pointed out to a nurse. The daughter’s query was passed on to the director of nursing, one of the two respondents to this appeal.
The director asked Mr Eastwood to demonstrate what had happened. He did this on 2 February 1997. Demonstrating on a nurse, he supported her on the left side and held her left arm and hand. Eastwood then indicated that Madam Chan had held her quad stick in her right hand. When Eastwood’s attention was drawn to the terms of his original incident report, he explained that he had made a mistake and then completed a further corrected incident report.
Eastwood’s evidence was consistent with the corrected report. The appellant sought to make much about the fact that neither report spoke of Madam Chan taking several shuffling steps after standing up, and before she fell. Reference to it in the course of the trial was said to be a recent invention, far from the truth and a reason in itself to reverse the credibility finding made in Eastwood’s favour.
Eastwood’s evidence was that whilst he was giving out afternoon tea he saw the red light above Madam Chan’s door. When he went in to her, she was sitting in an easy chair, near the window, holding her quad stick in her right hand. Eastwood said he heard Madam Chan say the word “toilet”. He indicated that he was going for help. He spoke with a colleague who gave him permission to effect the transfer alone, using a shower chair. Eastwood said he went to a bathroom, obtained such a chair and took it to Madam Chan’s bedroom. Madam Chan was still seated in her easy chair, holding the quad stick. Eastwood positioned the shower chair to the left of Madam Chan, but close to her. Eastwood said that Madam Chan was aware of the shower chair and that he then noticed that she was stable, awake and very much aware of what was happening. He gesticulated to Madam Chan that he was about to transfer her from the easy chair to the shower chair. His recollection was that Madam Chan responded by giving a nod of approval. Making sure that the patient was positioned correctly, with her feet approximately under the front of the chair, and her bottom forward in the chair, with the quad stick in position near her right foot, he told Madam Chan that on the count of three she should stand up and then shuffle around to the shower chair. Eastwood’s evidence was that Madam Chan nodded. He said she was aware and stable. Eastwood was asked to demonstrate what he did. He did so. He was then asked whether he said anything to Madam Chan. His answer was:
“Yes, ‘On the count of three, on the third one, you’re going to stand. So I’m going to count three. On the third one you’re going to stand up for me and you’re going to shuffle around and you go into the chair. So I’ll count to three, one, two, three’.” -
Counsel for the respondents intervened saying:
“The demonstration proceeded with the count of three, a lifting motion by Mr Eastwood, the model stood up, there were some three shuffle situations going in a clockwise direction.”
Counsel then asked whether Mr Eastwood noticed whether what Madam Chan did with the quad as he was doing those shuffles. Eastwood replied:
“She was using a quad the whole time we were moving around, she was moving it, holding it.”
Counsel again summarised the demonstration by saying:
“Mr Eastwood demonstrates the quad going from position to position as a shuffle took place. Mr Eastwood stepped with his legs in a clockwise motion as the model also moved and the position that he ended up with is that the right leg is approximately 18 inches from the left leg of Madam Chan and his right leg and foot is in - well the front of the foot is touching the heel of the left foot and his right leg is - well, the distance between the foot and the arch of his foot away from the left leg.”
In answer to further questions, Mr Eastwood said that Madam Chan stood up well, appeared stable and alert, “and importantly she was cooperative and she was aware of what was happening”. Mr Eastwood was then asked what happened after the shuffle that he had demonstrated. Eastwood’s reply was:
“Well, without warning she seemed to sort of melt and she sort of ripped out of my grip, she fell this way here.”
Counsel again noted that when indicating that she fell this way here, Mr Eastwood was indicating that Madam Chan was falling forward and to the left. Mr Eastwood was asked what he did to try and assist. His answer was:
“Well, I did all I could do, actually. It was so quick and so - of course, I had hold of her, but she just melted and it was instantaneously. It was sort of like a split second. She just sort of, like, collapsed completely.”
Counsel then asked:
“Now, when you say ‘collapsed’, were you able to - did you have time to take assessment of what leg went or whether one or more legs went, or can’t you give that detail?”
A.“I think the whole - I think both legs went. Her whole body collapsed like a sack of potatoes, really. You know, well, just melted; and I’ve used the word ‘melted’. So she was in a stable position and cooperating, aware of what was happening and alert and orientated and just suddenly completely - a complete - she sort of completely melted out of my grip.”
The trial judge considered Eastwood’s evidence against the opinion of one of the medical experts called, Professor Burns, in particular. The Professor’s view was that Madam Chan probably suffered a syncopal attack and fainted. The appellant’s case to the trial judge was that she did not faint. Her fall was provoked by ordinary frailty, which an appropriate transferring technique could and should have coped with.
The appellant shared her room in the nursing home with another woman. At the time of the fall that woman’s son, Mr Teng Hill, was out of the room. He heard a commotion and ran into the room to find Madam Chan lying face down on the floor. Mr Teng Hill’s evidence was that when Madam Chan was lifted from the floor and placed on her bed, she told him she was fine and that she had had a fall. Soon after the incident the appellant’s son, Dr Yee Leong, arrived. He too spoke of his mother being alert and lucid. He took his mother to the Burnside Hospital for xrays. There were then no neurological signs calling for a cat scan. Dr Leon returned his mother to the nursing home late in the evening. His evidence was that during the time he was with his mother, he conversed with her and that he did not note anything further about her demeanour.
There were some unusual aspects to Madam Chan’s behaviour after she returned to the nursing home that night. CT scans were taken on 10 January at the Memorial Hospital. These disclosed 5 separate cerebral haemorrhages. Subsequent scans within the next fortnight disclosed further bleeding in the 4 days after the CT scan of 10 January and then slow involution of the bleeding thereafter. The trial judge found that as a result of the fall Madam Chan was rendered “all but a quadriplegic” with some limited movement of the right arm remaining. She had a limited awareness of her condition and inability to move about or to swallow or speak. Those findings are not disputed in this appeal. The respondents’ dispute that it is reasonable to have intensive 24 hours home care as a result of the injuries sustained.
I think the trial judge was entitled to make the credibility finding that he did. In his judgment, the trial judge refers to other convincing evidence which supports or is consistent with the evidence of Mr Eastwood. Nothing put in the course of the hearing of this appeal persuades me that the trial judge’s finding as to how the fall occurred discloses a failure to use or a palpable misuse of his advantage in seeing and hearing witnesses. Likewise, I am not persuaded that, in his careful review of the evidence and the witnesses, His Honour has acted on evidence inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable[1]. It is not necessary to revisit the evidence of other witnesses so closely considered by the trial judge. Suffice it to refer to the evidence from the respondent Mrs Barter, as to the demonstration Eastwood gave to her on 12 January 1997, which included the taking of some three steps forward by Madam Chan, from her chair and some turning before she fell. The explanation accepted by the trial judge for the absence of any reference to the taking of steps or shuffling and turning in the reports was entirely open to the trial judge. No proper basis exists for rejecting the view taken by the trial judge, based as it was upon the credibility finding he made favourable to Mr Eastwood.
[1]Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479; Suvaal v Cessnock (2003) 77 ALJR 1449; 200 ALR 1 at [68] – [76]
The appellant referred particularly to two particular aspects of the trial judge’s findings. It was submitted that there were incontrovertible facts demonstrating error[2].
[2] Fox v Perry (2003) 77 ALJR 989; 197 ALR 201 at [28]
In his reasons, the trial judge’s finding that Madam Chan suffered a simple fainting episode was based upon the opinion of Professor Burns. His evidence was that whilst a syncopal episode usually arises immediately upon standing up, postural hypertension leading to fainting can occur some seconds, or even minutes after standing up. Thus, the trial judge accepting Eastwood’s evidence about a shuffle was still entitled to find that Madam Chan had fainted.
It was argued that, in his reasons, the trial judge, having referred to that opinion of Professor Burns added that urine was discovered on the floor at the place of the fall, from which His Honour inferred that Madam Chan urinated in the course of the fall. The submission was that there was no evidence of urine being discovered on the floor at all and that an incontrovertible fact was identifiable that gave rise to proper cause for interfering with the trial judge’s findings. True it is that the trial judge was in error about urine being discovered on the floor. Professor Burns did say that the fact that Madam Chan was incontinent was quite in keeping with the hypothesis that she had a faint or syncopal episode. It seems that there was a reference in correspondence with the Professor before trial which asked the Professor to assume that urine was on the floor at the site of Madam Chan’s fall. The judge’s finding [112] was that:
“In all likelihood Madam Chan did faint by reason of postural hypertension at the point of Michael Eastwood turning her to sit in the shower chair. That the fainting was due to ‘the first manifestations of intra-cerebral bleeding’ is a possibility only. In so finding, I have adopted the views of Professor Burns.”
His Honour went on to say that all the medical evidence before him meant that it was unlikely that a bleed sufficient to render Madam Chan unconscious would then abate so that she could venture out happily with her son, talking, transferring and otherwise not exhibiting any neurological signs. His Honour noted that Professor Burns’ view was, in part, dependent on the history of the fall as given by Michael Eastwood, with its emphasis on melting and apparent loss of consciousness.
I do not accept that the trial judge’s credibility finding can be properly set aside because of the error made by His Honour with respect to urine on the floor at the place of the fall. The further argument that there was no quad found after the fall, again, is not an incontrovertible fact that properly shakes the findings made by the judge. Indeed, the trial proceeded without any challenge to the evidence of Mr Eastwood as to Madam Chan having the quad with her, as was invariably the case on all the other evidence, including that of Dr Leong, Madam Chan’s son. Any evidence suggesting the absence of the quad would be but a variation in circumstances that is a common challenge for any fact finder. Nothing can be made of this possibility absent any challenge to that effect being put to Mr Eastwood. An obvious explanation if the quad was not seen after the incident would be preoccupation with the need to attend to Madam Chan after the fall.
A further challenge to the trial judge’s findings was founded upon the submission that Madam Chan may well have been taken to a commode rather than a shower chair. Any such variation in detail could not mean that the reliance upon the substance of Eastwood’s evidence is misplaced. So too, the suggestion that the demonstration, by Mr Eastwood to the respondent director, of a particular movement being different from that demonstrated in court. Any such variations were sufficiently pursued and plainly considered by the trial judge to the extent that they were proper issues before him. His ultimate acceptance of Eastwood was open to him. It is not properly demonstrated to be erroneous by reference to incontrovertible facts.[3]
[3] Fox v Perry (2003) 77 ALJR 989; 197 ALR 201 at [28]
On the hearing of the appeal, the appellant amended the Notice of Appeal to allege a denial of natural justice. It was claimed that the trial judge “having indicated to the appellant’s counsel that there was no evidence to support syncope subsequently in his judgment held that Madam Chan fainted because of syncope”.
In the course of cross-examination by the respondents’ counsel Dr Henschke was asked whether walking several steps would be inconsistent with syncope or an abrupt loss of consciousness. The answer was in the negative. This answer was given after the evidence of Professor Burns, called by the respondents but interposed in the course of the appellant’s case. Professor Burns was not asked specifically about shuffling by Madam Chan. He said that the description of “melting” sounded like syncope and that it may have been precipitated by standing up.
When the respondents’ counsel opened their case, he introduced, for the first time, the fact that Eastwood would speak of shuffling by Madam Chan. He also indicated that the respondent director of nursing would give evidence of Eastwood’s description and demonstration given to her on 12 February 1997. The evidence from both Eastwood and the respondent director was as foreshadowed in the opening. Just as the respondents’ counsel indicated that he was ready to close the respondents’ case without calling any further witnesses, the appellant’s counsel sought to recall a witness and put to her the version of events that Eastwood had given in the course of his evidence, particularly that about the shuffling steps taken by Madam Chan.
Counsel conceded that the witness had been asked, in cross-examination, about a movement by Madam Chan involving the shuffling of her feet. The witness was one called in the course of the appellant’s case, after Professor Burns but before Dr Henschke. Counsel submitted to the trial judge that the witness should be recalled to specifically say that to have moved Madam Chan in a clockwise direction as he demonstrated would be unsafe. The appellant’s counsel put to the trial judge that counsel for the respondents should have put what was put to the witness sought to be recalled equally specifically to other experts, including Professor Burns. This was used in support of the application to permit what was then described as “the full circumstances of the shuffle” deposed to in evidence by Mr Eastwood being put to the witness sought to be recalled. Counsel complained that none of the documents and letters discovered before trial had a description of “shuffling” or “manoeuvring”. Counsel suggested that the opinions of some of the experts, including Professor Burns, with respect to syncope might change if the shuffling evidence were specifically addressed. Counsel put to the trial judge that when Madam Chan stood up she suffered hypertension,
“that is lowering of the blood pressure due to her rising up, that caused the syncope episode. You don’t have that if you then start to have her moving around.”

The trial judge then said:
“But the defendant’s position has always been hasn’t it, that on coming to her feet that Eastwood checked that she was, as it were, on the ball and co-operating. The syncope taking over when she rises, that time had passed hadn’t it? He’s about to move her and he’s checking for alertness. Isn’t that his evidence and he got a response? Is that right?
Doesn’t that undercut your contention that therefore - what we’ve got is a matter of degree here. We’ve got her moving a little bit haven’t we or pivoting and moving to a position to sit down in a chair? The important issue is that she’s alert when she’s at her feet.”
Counsel then said he was not quite certain what that did to the syncope argument. His Honour then replied:
“If the syncope argument is dependent upon her being or not being alert when she’s at her feet, it’s dead anyway isn’t it?”
Counsel agreed with the trial judge, that if he were to accept the evidence of Eastwood that was so. He then put to the judge that he sought to recall an expert to comment on the nature of the movement “now that we know the nature of that movement”. It was put that, in the light of the material now produced by their expert in consequence of further questions of her over the weekend, that witness was likely to say that the movement particularised by Eastwood was an inappropriate movement. The trial judge asked why, if that were so, it had not been said before.
Counsel suggested that the questions asked of that witness did not focus upon the movement in a clockwise direction when there was weakness on the left side. The trial judge continued to hear the application by the appellant’s counsel, indicating that if he were to grant leave it might “open the can of worms for other witnesses”.
Counsel for the respondent opposed the application. He relied upon his specific questions about the shuffling of feet and submitted that it was not necessary to put that aspect to those expert witnesses who were not professing expertise in manual handling, as the witness sought to be recalled was.
The trial judge continued an exchange with counsel about the consequences of any grant of leave. The appellant’s counsel said he would find it difficult to resist other persons having to be called or recalled. The trial judge put to counsel that the respondent’s counsel was putting his case to the witness now sought to be recalled. The appellant’s counsel submitted that what was then put “was entirely inconsistent with what (the respondent’s counsel) had been putting prior to that and what was the case we came to meet”. The trial judge reminded counsel that what was put to his witness was confirmed in the respondent’s opening. Whilst counsel maintained his application for leave to recall one witness, he did not then specifically ask to have the neurologist, Dr Schaeffer and Professor Burns recalled. The transcript does not disclose whether the trial judge granted leave or left the matter to counsel. In fact, witnesses were recalled by both sides. Neither Professor Burns nor Dr Schaeffer were recalled. Questions were asked of the recalled witnesses about the appropriateness of the assistance Eastwood deposed to when the fall occurred.
The submission put to this Court was that the plaintiff’s counsel raised the question of recalling Dr Schaeffer and Professor Burns “because the defendant had failed to properly put its case” that the plaintiff “had not just stood up and then fallen, but that she stood up and then took some steps with him and then fell.” Counsel emphasised to this Court that the history previously given to those doctors “didn’t include that process and it may well be highly relevant to the question of whether there was a fainting attack or not.”
I reject the argument that the appellant was denied natural justice by what was said by the trial judge in the course of the application for leave to recall a witness. It is not a proper construction of what occurred to conclude that his Honour had indicated to the appellant’s counsel that there was no evidence to support syncope and then found that Madam Chan fainted because of syncope.
If the fact that Madam Chan was alert when she got to her feet was fatal to the claim of syncope, there was no need to recall medical experts to put to them that evidence that Madam Chan had taken two or three shuffling steps indicated a state of alertness inconsistent with syncope. In other words, because it was common ground that Madam Chan was alert when she got to her feet, and because evidence that she took two or three shuffling steps merely confirmed that she was alert, there was nothing to be gained (on the issue of whether Madam Chan fainted) by the recalling of the medical experts for the purpose of suggesting to them that the evidence about shuffling steps indicated that she was alert. On the other hand, if the fact that Madam Chan was alert when she got to her feet was not fatal to the claim that she suffered a syncope, nothing was to be gained by recalling the doctors to ask them about the significance of her having taken some shuffling steps.
I read the exchange between counsel and the judge as no more than an indication from the trial judge that when Madam Chan was on her feet it was not disputed that she was then alert and that if syncope depended entirely on that, syncope was “dead”. If syncope did not hang entirely on that it was still a live issue. The shuffling was simply an aspect of whether Madam Chan was alert when she got to her feet.
The trial judge found that Madam Chan was alert when she got to her feet. The evidence of Professor Burns acknowledged the melting described by Eastwood as entirely consistent with syncope, syncope being described by Dr Henschke as “just a medical jargon for going to the ground and loss of consciousness.”
It is not without significance that Dr Henschke was asked by the appellant’s counsel whether the fact that Madam Chan walked several steps would be inconsistent with syncope. He replied that it was not. “Syncope simply means an abrupt loss of consciousness.” The evidence from Professor Burns being that the fainting could have occurred as a result of Madam Chan’s standing was not confined to that occurring before any shuffle of the kind particularised by Eastwood in his evidence and already an issue between the parties as a result of the questions asked of the witness later recalled by the appellant.
I reject the submission put to this court that the appellant’s counsel at trial was lulled into a false sense of security with respect to syncope because of what appeared in the transcript. There was no error of law in the nature of a denial of natural justice. The trial did not miscarry.
It should be noted that in the submissions put on behalf of the appellant at the end of the trial, the evidence of Professor Burns was quoted. The effect of that evidence was that the syncopal episode leading to a loss of consciousness arose “as a result of standing up due to postural hypertension.” The submission acknowledged that Professor Burns maintained that postural hypertension can occur some seconds or even minutes after standing up. It does not have to be immediately. The remarks of the trial judge in the course of the trial did not amount to an assertion that there was no evidence of syncope. The natural justice principles were not offended. The ground of appeal added on the hearing of the appeal fails.
None of the grounds of appeal challenging the findings made by the trial judge with respect to the appellant’s fall are made out.
There remains to be mentioned the challenge made to the trial judge’s indication that had liability been established, the appellant’s claim for home care should have been upheld or, alternatively, a sum allowed for attendances by the appellant’s family given the injuries resulting from the fall and their effect upon the appellant’s quality of life.
With respect to the claim for home care, I agree with the view taken by the trial judge on the evidence that was before him. The evidence does not satisfy me that appropriately credentialed nursing homes in the city are incapable of caring for Madam Chan. Like the trial judge I accept that the evidence called by the respondents established that appropriate nursing home care is available for the appellant. I agree with the conclusion of the trial judge that the health benefits to the appellant resulting from her being cared for at home, are not so significant that it would be reasonable to incur the cost of home care at a rate in excess of $100000 per year.[4]
[4] Sharman v Evans (1977) 138 CLR 563 at 573
The trial judge did not accept that a claim for additional attendances by Madam Leong should be allowed if the claim for private home care were disallowed. The trial judge’s view was that there was no medical or psychiatric evidence to establish a proper need for such an additional service.[5] His Honour’s view was that just as before the fall, so too since, Madam Chan’s emotional and psychological care could be adequately provided for by the caring atmosphere of a home supplemented by regular visits from various members of her family. I am inclined to think that the evidence did establish that Madam Leong would spend more time with her mother after this fall than she would have before. On that basis some amount would be properly awarded. The amount claimed based on a Dial-an-Angel report was $250000 for the past and $135000 for the future. That sum seems excessive. Had the plaintiff’s appeal succeeded, I would have increased the award of damages by awarding a sum of no more than $100000 for the past and no more than $60000 for the future.
[5] Van Gervan v Finton (1992) 174 CLR 327 at 331-338
The appeal should be dismissed.
VANSTONE J:     I agree.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479; Suvaal v Cessnock (2003) 77 ALJR 1449; 200 ALR 1 at [68] – [76]
2.     Fox v Perry (2003) 77 ALJR 989; 197 ALR 201 at [28]
3.     Fox v Perry (2003) 77 ALJR 989; 197 ALR 201 at [28]
4.     Sharman v Evans (1977) 138 CLR 563 at 573
5.     Van Gervan v Finton (1992) 174 CLR 327 at 331-338

[2003] SASC 345

23 October 2003