Chan v Barter & Barter T/A The Pembroke Nursing Home No. DCCIV-99-1823

Table of Contents
1.           Introduction
2.           The parties
3.           Issues for Determination
4.           Background circumstances
4.1          Early Personal History
4.2          1970 Stroke in Malaysia
4.3          1992 - Aortic Stenosis - Aortic Valve Replacement - Warfarin
4.4          1994 – Urinary problems
4.5          1995 Strokes – left-sided hemiparesis
4.6          Extent of the Plaintiff’s Infirmities following the 1995 strokes
4.7          Time at Pembroke Nursing Home 7.11.95 (admission) to 9.1.97 (fall)
4.8          Assessments – Nursing Care Plans
4.8.1        Criticism re Behaviour
4.8.2     Criticism re Cognitive Impairments
4.8.3        Criticism re Continence and Toileting
4.8.4        Criticism as to mobility
4.8.5        Criticisms to noting that Madam Chan had left-sided hemiparesis

4.9 Standard of care provided by Pembroke Nursing Home

5.           The fall 9th January 1997 and its aftermath
5.1          Eastwood’s qualifications and experience
5.2          The fall – Michael Eastwood’s evidence
5.3          Immediate aftermath
5.4          The First Incident Report – 9th January 1997
5.5          Madam Leong’s visit to Pembroke Nursing Home after her mother’s fall
5.6          The Second Incident Report – 2 February 1997

6.           Liability
6.1          Applicable legal principles
6.2          Contentions on Liability
6.3          Findings on Liability
6.3.1        Loss of consciousness or not?
6.3.2        Credit of Michael Eastwood
6.3.3        Other convincing evidence which supports or is consistent with testimony of Eastwood
6.3.4        Conflict between the two Incident Reports and alleged inconsistency between the separate accounts
6.3.5        The site of the injury – the failure to fall against Eastwood – the direction of the fall.

6.4          Whether the methodology to transfer employed by Michael Eastwood adequately discharged a duty of care on him and the Home as his employer
6.4.1        Single assisted transfer
6.4.2        Method of transfer
6.4.3         Turning Good Side/Bad Side
6.4.4        Use of an inappropriate grip

6.5          Finding on plaintiff’s primary case of defendants being vicariously liable
6.6          The alternative contention that the defendants are directly negligent
6.7          Finding on plaintiff’s alternative claim of direct negligence against the defendants
6.8          Overall finding on liability

7.           Causation
7.1          The ambit of the dispute
7.2          The respective views
7.3          Onus of Proof - causation
7.4          Findings on medical causation issue

8.           Contingent Assessment of Damages
8.1          Non-economic losses
8.1.1        pain and suffering
8.1.2        Interest on past non-economic loss

8.2          Economic losses
8.2.1        Past and Future care – contentions relating to Home Care
8.2.2        Reasonableness of Home Care – legal parameters
8.2.3        Application of principle - findings
8.2.4        Past and Future care – Nursing Home – claim for Madam Leong’s attendance
8.2.5        Special Damages
8.2.6        Cost of management of the fund

9. Overall Summary

Lai Hoo Chan by her daughter Hung Chook Leong v Laurel Barter and Christopher John Barter trading as The Pembroke Nursing Home
[2003] SADC 5
Judge Smith
Civil
1. Introduction

In this action the plaintiff, Lai Hoo Chan, sues the defendants, Laurel and Christopher John Barter, trading as The Pembroke Nursing Home, for damages for personal injuries alleged to have been sustained when she fell to the floor and struck her head at the premises of the Pembroke Nursing Home at Kensington Park on the 9^thJanuary 1997.
The plaintiff who had a partially paralysed left side (left-sided hemiparesis), fell as she was being moved from a chair to a shower-chair by Michael Eastwood, who was a carer employed at the Home.
In this action the plaintiff alleges that, as a result of the fall, she has been rendered all but a quadriplegic. She has some limited movement of the right arm, but has no ability to move about or to swallow or speak and is fed through a gastrostomy tube. She requires intensive 24-hour home care. She has a limited awareness of her predicament.
The claim is in negligence and is firstly, on the basis that the defendants are vicariously liable for the alleged neglect of Michael Eastwood and secondly, and alternatively, that they are directly liable for “failing to instruct and/or supervise appropriately in connection with the transfer procedure”.
2. The parties
The plaintiff, Lai Hoo Chan (“Madam Chan”), is an 83 year old Chinese woman who emigrated from Malaysia in 1988 to join some of her many children. She sues by her next friend, Hung Chook Leong (“Madam Leong”), who is her daughter. In about February 1997, following the fall, the subject of this action, the plaintiff was removed from the Pembroke Nursing Home and has been cared for at home by her daughter, who forsook her employment as a teacher to care for her mother on a fulltime basis.
The defendants, Laurel and Christopher John Barter, owned and operated the Pembroke Nursing Home at Kensington Park from 1993 to 2001. Laurel Barter was not only joint owner of the Home, but also a registered nurse of long experience with post-graduate qualifications in, amongst other areas, rehabilitation and geriatric nursing. At all material times she was the Director of Nursing at the Home. She also was an experienced administrator and showed a considerable knowledge of the plethora of Commonwealth legislation applicable to nursing homes.
3. Issues for Determination
The issues which have emerged for my decision are:
·whether the defendant, by its servant Eastwood, was negligent in the method used to transfer the plaintiff;
·whether the Nursing Home ought to have permitted Eastwood to attempt the transfer alone and/or without supervision;
and if yes to either or both of the above:
·whether the brain haemorrhages and consequential injuries to Madam Chan were caused by the trauma of the blow to the head or as a result of the unrelated onset of pre-existing cerebrovascular disease, namely the rupturing of degenerated blood vessels of the brain exacerbated by anticoagulant medication (ie Warfarin);
and if the trauma caused the cerebral haemorrhages and their consequences:
·whether the cost of home care provided for the plaintiff by her daughter was reasonably incurred and therefore recoverable bearing in mind the availability of nursing home care (see Sharman v Evans (1977) 138 CLR 563 at 566-7 and 573; Beasley v Marshall (No. 1) (1986) 40 SASR 574 per King CJ at 575).
I now turn to the background circumstances leading up to the fall, and in particular, to the plaintiff’s personal history and her pre-existing health and medical condition which are of general relevance to her entitlement to damages and of particular relevance to the medical causation issue. Unless indicated otherwise, the following narrative constitutes my findings. I will identify any areas of disagreement and set out my specific findings as I traverse the narrative.
The plaintiff herself did not and could not give evidence. I met her at her home at 55 Balmoral Road, Dernancourt on the 1^st May 2002. Quite apart from her severe physical incapacities, her communication skills are minimal.
4. Background circumstances
4.1 Early Personal History
The plaintiff was born in Malaysia on the 5^th April 1919, and so is now 83 years old. She has a number of children; four of who are now resident in Australia. Apparently, the plaintiff’s husband died some years ago and the plaintiff raised her children by herself. Hung Chook Leong, the plaintiff’s daughter, and next friend in this action, is 60 years old. She has a long employment history as a teacher in both Malaysia and Australia. There are three sons who reside in Australia - a medical practitioner, a pharmacist, both of whom reside in Adelaide, and a veterinarian, who resides in Sydney (55). The plaintiff came to Australia in 1988. Madam Leong, followed her mother to Australia in 1989. The three sons had migrated earlier.
4.2 1970 Stroke in Malaysia
In 1970, at the age of 51, the plaintiff suffered a stroke. She was living in Malaysia at the time. Her son, Dr Yee Kong Leong, who was then resident in Malaysia, said in evidence that it was “a minor stroke”. He added that, as a result, his mother “had a very minor weakness of the left leg, she was walking, using all her arms and all her facilities were normal, except for the weakness of the left leg a little bit, she was walking with a bent knee …” (527). There was no challenge to this evidence. I accept that this first stroke had the above described effect on the plaintiff.
As indicated, the plaintiff migrated to Australia in 1988 and was joined by her daughter in the following year.
In 1989 Madam Leong and her mother purchased the house at 55 Balmoral Road, Dernancourt and both lived there (57). By all accounts, in these early years in Australia, the plaintiff led a full and physically active life. She was fluent in Cantonese, including reading and writing. She spoke very little English and neither read nor wrote English. She socialised with her family and had other friends.
4.3 1992 - Aortic Stenosis - Aortic Valve Replacement - Warfarin
In about 1992 the plaintiff began suffering from shortness of breath. She was diagnosed with aortic stenosis. In 1992 she underwent open-heart surgery to replace the aortic valve (527; Exhibit P2). The anticoagulant Warfarin was prescribed following this surgery (58). She was taking daily doses of Warfarin at the time of the fall. The primary aim of Warfarin in Madam Chan’s case was to reduce the risk of blood clotting in and about the valve, but it also had a consequential propensity to cause bleeding into the brain (315, 316, 323). The level of Warfarin in the blood can be measured. The measure is called “International Normalisation Ratio” (ie INR reading). The neurologist Professor Richard Burns, explained that the INR “gives you some idea of how heavily you are anticoagulated. The figures start at nought, which is you and me, hopefully ...” (322, 323). He said the therapeutic or medically desirable level for Madam Chan, as at the time of the fall, was an INR reading of between 2.5 and 3 (Exhibit D2 at 1.2). In the plaintiff’s case, given her significant cerebrovascular disease, it was clearly necessary to monitor the INR level and keep it in the therapeutic range. Professor Burns best explained the medical problem provoked by the use of Warfarin in the following terms :
“Coagulopathy is really a condition where a person bleeds more than they should and she was being treated with an anti-coagulant, Warfarin, for the express purpose of preventing clots forming on her heart valve and there is a known protective effect of Warfarin in preventing what’s called embolic strokes; in other words, strokes that go from the heart to the brain. The downside of such treatment is that persons on Warfarin have a greater propensity to have bleeding into the brain, so you have to balance the risks of clots forming on the heart versus the risks of bleeding, and so not everyone with this problem will be given Warfarin, because you might decide, because of their age, or because of some other factors, that it is not worth the risk.”
(315, 316)
Further, Professor Burns made it clear that there was a “very long lag period between dose and clinical effect”. He explained that it “takes several days for the INR to change after a Warfarin dose” (356).
There was no debate of substance in the medical evidence about the effect of Warfarin.
I return to the narrative.
In 1994 Madam Leong became a volunteer teacher at the TAFE at Yalata on the Nullarbor Plain. Prior to that she had worked in Adelaide at the Overseas Chinese Association in the welfare area. Whilst at Yalata she successfully applied for a teaching position with the School of the Air in Port Augusta. She took up that teaching post in January 1995. It was a “0.8 contract” and involved work from Monday to Thursday. That enabled her to be at home with her mother for three days a week (56-58).
Following the open-heart surgery in 1992, through to August 1995, the plaintiff maintained a relatively busy life. She was living at Dernancourt alone for four days a week. Her Adelaide based children visited her and took her on outings (58-59). She would walk down to the delicatessen and purchase daily requirements such as bread and milk. Friends visited her. On Thursdays, her son, Dr Leong, would collect her and take her for a meal in the Central Market (59). According to both Doctor and Madam Leong, the plaintiff recovered well from the open-heart surgery. She walked normally, although she did have arthritic knees and sometimes used a walking stick. Domiciliary Care visited her, but otherwise she was able to cook her own meals and live capably by herself (Dr Yee Leong 796). She conversed freely with her friends and socialised not only with her family but also with her other friends (85, 528).
4.4 1994 – Urinary problems
In 1994 Dr Leong referred the plaintiff to Dr Hamilton because blood was detected in her urine. It was concluded that the bleeding was probably due to the taking of Warfarin. At that time, the plaintiff was noted to have what the medical profession call “frequency of micturition” (766) (ie need to go to the toilet urgently and frequently).
4.5 1995 Strokes – left-sided hemiparesis
In mid 1995 the plaintiff visited her daughter in Port Augusta. On the 28^th August 1995, whilst there she suffered a stroke. In medical terms she suffered a right-sided cerebral basal ganglia haemorrhage. It resulted in left-sided hemiparesis and cortical sensory loss. It also resulted in spasticity and a non-functional left arm. In other words, a haemorrhage to the right side of the plaintiff’s brain resulted in partial paralysis of her left side, including her left leg and in particular her left arm. A further haemorrhage occurred on the 8^th October 1995 (Exhibit P2). The plaintiff was initially admitted to the Port August Hospital. From there she was transferred to the Ashford Hospital and then to the Griffith Rehabilitation Centre. From there she was moved to the Neurological Rehabilitation Centre at the Memorial Hospital. Finally, in November 1995 the family placed her in the Pembroke Nursing Home.
The disabilities suffered by the plaintiff, as a result of these 1995 strokes, deprived her of the ability to live independently. Her daughter, Madam Leong, was living and working in Port Augusta and so could not care for her, and her two Adelaide based sons were not able to assist. Dr Leong made enquiries about a suitable nursing home (799). The family then placed the plaintiff in the Pembroke Nursing Home. At Pembroke, was a Chinese woman named Teng, who was a friend of the plaintiff. Further, there were Cantonese speaking nurses at the Home and the Home prepared Chinese meals for its residents. Madam Leong made the point that her mother was happy to be placed there, particularly given that her friend, Madam Teng, was there (79). Finally, the family retained the Cantonese speaking Dr Sok Hun Toh, to be the plaintiff’s treating medical practitioner.
4.6 Extent of the Plaintiff’s Infirmities following the 1995 strokes
The discharge summary (Exhibit P2) of Dr P Anastassiadis, the Director of Rehabilitation at the Griffith Rehabilitation Centre, detailed the plaintiff’s medical history and condition at the time she was discharged. The summary was tendered by consent. There was no issue taken about the correctness of the collected views incorporated in Dr Anastassiadis’ summary. It was accepted by both sides as a starting place in establishing the extent of the plaintiff’s pre-existing disabilities. I set out therefore the relevant contents:
“PROBLEM LIST:
1.   Psychosocial
76 year old Cantonese speaking lady living alone in daughters home at Dernancourt. Previously walked with stick. 2 steps out front of home converted to ramp with rail. Previously independent in ADL and cooking. Supportive children.
2.   Neurological
2.1(R) cerebral basal ganglia haemorrhage 28.8.95 (L) hemiparesis and cortical sensory loss, with spasticity with non-functional (L) upper limb. Mobile with frame and assistant.
2.2? CVA extension with further fresh cerebral haemorrhage 8.10.95 decline in function transfer with mobility ? due to bactofen.
2.3(R) CVA 1970 age 51, residual (L) hemiparesis.
3.   Cardiovascular
3.1Aortic stenosis, Aortic valve replacement 1992
3.2Hypertension
4.   Endocrine
4.1Goitre
5.   Musculoskeletal
5.1Osteoarthritis knee
6.   Urological
6.1Chronic urinary frequency/? detrusor instability
6.2Probable UTI 9.10.95
7.   Pharmacological
7.1Confusion and reduced functional performance and mobility on baclofen
7.2Anticoagulation for AOVR
MEDICAL REPORT (Name Dr P Anastassiadis, 11.10.95)
CLINICAL PROGRESS & COMMENTS:
(R) Basal ganglia haemorrhage with therapeutic INR, probably due to underlying hypertensive vascular disease on 28.9.95. Reasonable recovery of the (L) leg power but persisting dense paresis and spasticiity (sic) of (L) arm. Cortical sensory loss present. Commenced on baclofen with incremental dosing for spasticity. Transferring with 1 assistant and walking with frame until 7.10.95 when she had several vomits and mobility declined without change in neurological deficits. Baclofen assessed to be cause of reduced performance CT scan of head on 9.10.95 suggested rebleeding.
Hypertension also present on 9.10.95 with BP 200/90 settling after increase in amlodipine dose.
Persistent frequency without evidence of UTI. Residual urine performed on 7.10.95 and measured to be 10mls. Developed dysuria and increased frequency following this due to probable UTI.
Transferred to Memorial Hospital under Dr. P Fong on 9.10.95, at family’s request.
RELEVANT INVESTIGATIONS:
CT head scan 9.10.95 ‘well defined hypodensity in R basal ganglia with partly defined hypodensity within, consistent with fresh blood’. Previous films unfortunately unavailable for comparison.
INR 4.10.95: 2.7, 9.10.95 2.1
MSSU 2.10.95 : 70wcc/cumm, 170 RMC/cumm 103-104 org/ml mixed flora
TFT 18.9.95: T4 17.3 (11-28), TSH 0.8 mIU/L (0.4-4)
7.10.95;
Biochem NG 140 K 3.6 U 4.6 Cr 0.07
Haematology 7.10.95: Hb 13.7 WCC 10.1 Plt 307
PHYSIOTHERAPY REPORT: (Lorene Riley)
Mrs Chan has made slow progress following an extension of a (R) CVA on 28/08/95 (phx: (R) CVA 25 years ago).
Premorbidly: She was living alone in her own home and was managing independently. She walked with a stick and was able to use her (L) arm functionally.
She now presents with:
-     No active control of the (L) arm which rests in a flexor pattern. The ability to dynamically/passively stretch the arm is greatly limited. At best the shoulder can be passively moved to approx. 70° flexion and 30° abduction. The elbow ROM (‘Range of Movement’) is also limited from 60-100° flexion but the hand and wrist are more easily moved due to less tonal effects.
-    Poor quality of movement in her (L) leg. She tends to move her leg in a gross flexor pattern and is unable to dissociate movement at any joint. No distal foot/ankle control is evident.
-     Poor standing balance: She cannot maintain a “static” standing posture unsupported for more than a few seconds. She lacks hip protraction and trunk extension and has a tendency to lean to the (L).
-    Gait: She can walk a few meters with a quad and 1 assistant. Her balance remains unreliable and at times her (L) knee has a tendency to give way. She initiates swing with triple flexion on the (L), has a narrow B.O.S. (‘Base of Support’) lacks effective weight transfer.
She is a pleasant lady and has been keen to co-operate in all physio sessions despite the language barrier. She has been transferred to Memorial Hospital to continue with her rehabilitation programme.
OCCUPATIONAL THERAPY REPORT: (Caroline Marshall, 13.10.95)
MODIFIED BARTHEL’S:
-    Index on Admission 25.9.95 - 35
-    Index on Discharge
Mrs Chan is a pleasant Chinese lady, who previously lived alone; known to Dom Care for equipment – commode due to urgency, and ramps and rails.
Her independence in ADL was largely limited by her poor mobility, transfers and balance. She was progressing well with ADL retraining, sitting on a shower chair, and being encouraged to wash under her left arm, cross her knees to reach her feet, and using a soap bag. She was fairly independent prior to 6.10.95 once set up and with standby assistance. She had no apparent perceptual problems in body or spatial awareness. However she needed moderate assistance with transferring and standing as this was unreliable. Mrs Chan was given a rocker knife, and had no difficulty eating tidily. Communication was adequate despite the language difference. Family or friends were very willing to interpret and explain procedures when necessary.
NURSING: (Anne Howe CNC)
Mrs Chan ambulated with a quad stick with strict standby assistance. She required moderate assistance with ADL’s (‘Activities of Daily Living’) and prompting to be safe on transfer, particularly when transferring to a sitting position. Continent of urine but long standing urgency remained. Bowels were regular.
FUNCTIONAL STATUS
MINI MENTAL: ON ADMISSION             Unable to perform due to
MINI MENTAL: ON DISCHARGE              communication difficulties
MEDICATIONS ON DISCHARGE:
Amlodipine 7.5mg mane, warfarin 2mg daily (aiming for INR 2.0-2.5), sorbitol 70% 10ml bd, Aristocort 0.02% cream to (L) arilla bd, amaxycillin 500mg tds after collection of MSSU
DISCHARGE PLANNING/COMMUNITY SERVICES:
Transferred to Memorial Hospital under Dr P Fong at family’s request
FOLLOW UP COMMENTS/APPOINTMENTS:
MSSU and commencement of antibiotics.
Radiological review of CT head scans recommended ? slow resolution of haemorrhage or rebleed on CT of 9.10.95.
Dantrolene could be used for spasticity in upper limb if required.
Fast stream rehabilitation at Memorial Hospital.”

I accept that the plaintiff’s medical history and medical condition were as described above when she became a resident in the Pembroke Nursing Home on the 7^th November 1995. So, drawing upon the summary and the further evidence, I find that as at November 1995, when the plaintiff became a resident in the Pembroke Nursing Home, her physical disabilities included the following:
·she had a left-sided hemiparesis so that her right side, that is right arm and leg, were not compromised or disabled, save for osteoarthritic knees (Exhibit P2);
·she could walk but required an assistant on her weak left side (82, 89, 175, 776) and used a “quad” stick (a walking stick with a four pronged wide base – Exhibit P20) on her right side which she held in her right hand (66);
·her right hand and arm were not disabled and so for instance she used her right hand to push herself up from a chair (81-84);
·to assist the plaintiff to walk, the carer would place his or her right hand or arm under the left armpit and with his or her left hand hold her left arm at the forearm or hand and walk alongside her positioning himself or herself close up to her left side;
·the plaintiff could take a step with her left leg and could weight bear on the left leg but the step would involve a flicking or shuffling of the foot forward (88, 89);
·the plaintiff would topple over if not supported when standing or walking. If she was left unsupported she would fall to the left after one or two seconds (807);
·her left arm was all but useless and was not used at all to grasp the quad stick (Exhibit P2; 87, 190);
·she had symptomatic arthritic knees (Dr Leong 82; Madam Leong 85);
·when transferring from a bed to a chair or from a chair to a shower-chair or from a wheelchair to the seat of a motorcar, she required assistance. (NB whether the assistance ought to be provided by one or two assistants is a matter of controversy which I will deal with later).
There is some controversy as to the plaintiff’s cognitive abilities as at the time of her admission to Pembroke.
It is the view of the gerontologist, Dr Philip Henschke, that the plaintiff now is cognitively impaired. He suggested a serious level of impairment and did not regard the sign language developed between the plaintiff and her daughter (eg the plaintiff responding to prompts by nodding, blinking, staring or frowning) as any indication that underlying the severe motor impairments there is a fully alert brain (Exhibit D2 at tab 3.2; 1192). The plaintiff’s right arm and hand, though apparently useful, are not employed to any significant extent to communicate. The nursing expert Ms Joylene Murch expressed the same view as Dr Henschke (1139, 1140). I note that Dr Yee Leong said that he has not been able to develop any reliable method of communicating with his mother (810). He was there referring to communication by blinking, nodding and frowning. So too, Mr Schaeffer’s view is that Madam Chan has a limited awareness of her parlous state (Exhibit P7). So I accept the views of these witnesses and, in particular, Dr Henschke and Mr Schaeffer to the effect that the plaintiff has limited appreciation of her condition and is cognitively impaired. It is necessary to any assessment of damages in this action to ascertain whether any cognitive impairment pre-existed the fall. The Nursing Care Plan prepared by the Home and dated 28 November 1995 listed the following:
·impaired communication skills unrelated to language difficulties;
·lack of ability to make thoughtful judgments;
·cognitive impairment;
·impairment of verbal communication related to decreased circulation to the brain;
·disorientation;
·inability to find words or name words;
·loose association of ideas;
·incessant verbalization.
So, if the Nursing Home is correct, the plaintiff was cognitively impaired to a significant extent before her fall on the 9^th January 1997.
It was only during the course of the trial that Madam Leong learned that the Nursing Home held the above view (697). She was upset by the assessment and categorically disagreed with it (694-698). She drew the Court’s attention to the fact that her mother could read the newspapers, analyse things, communicate sensibly and rationally, recall events and “remember lots of things” (697). Her brother Dr Yee Leong expressed generally the same view. He said that before the fall he was “not aware” that his mother had any cognitive problems (777). It was contended by counsel for the plaintiff that Dr Toh too did not agree with the Nursing Home’s assessment (150, 151). However, she eventually made it clear that it was her view that the plaintiff suffered “some cognitive impairment but not serious cognitive impairment” as a result of the 1995 strokes (894-896, 900, 902). Fiona Hatchard, a registered nurse of some 21 years experience, who nursed the plaintiff at Pembroke said:
“... I think that she had perhaps some cognitive disability. It was a little difficult to gauge, of course, because she was Chinese speaking, but she was generally quite aware”. (1337)
She added that Madam Chan “had a degree of confusion and short term memory loss” (1342). The first defendant, Laurel Barter, said that she “spoke with Madam Chan nearly every day when on duty” (1004). She said that the plaintiff was cognitively impaired and that her behaviour at Pembroke demonstrated it (1059, 997-1002).
I accept the view of Dr Toh, supported as it is by Fiona Hatchard and Laurel Barter, and I find that as a result of the 1995 strokes and the consequent brain damage the plaintiff did suffer cognitive impairments which, however, were “not serious”. Like Dr Toh, I do not regard such a view as necessarily inconsistent with the fact that the plaintiff could hold rational conversations, read and write Chinese, watch TV and videos, enjoy outings particularly family “get togethers” and enjoy eating special Chinese meals. I consider that it was probable that by reason of her age, her medical condition, and her medication, her presentation was variable. Also language difficulties and cultural differences probably played a part. All these matters together with the “not serious” cognitive deficits probably contributed to the Nursing Home’s assessment as particularised in the Nursing Care Plans under the heading of “Behaviour”.
So in summary, on the 7^th November 1995, when the plaintiff arrived at the Pembroke Nursing Home, she had a left-sided hemiparesis. She required considerable physical assistance with a wide range of activities including eating, moving about, toileting, showering and dressing. By reason of her physical frailty, her history of cardiovascular disease and the fact that she was taking Warfarin, considerable vigilance by nursing staff was required. Though cognitively impaired to a degree, she was by and large alert, communicative and sociable. She required “24-hour per day care in that she always needed a mature adult somewhere in her environment whether or not it was within the same room, or someone within call to assist her” (Dr Toh 515).
4.7 Time at Pembroke Nursing Home 7.11.95 (admission) to 9.1.97 (fall)
The plaintiff moved into the Nursing Home on the 7^th November 1995.
Immediately following her admission to the Home, an assessment of her care requirements was conducted. This was necessary not only to have her classified for funding purposes under the National Health Act, 1953 (Commonwealth), but also to assist with her management in the Home. The assessment was directed to:
·continence;
·maintenance of skin integrity;
·specialised nursing procedures;
·physical aggression;
·verbal disruption;
·behaviour;
·vision;
·hearing;
·speech comprehension;
·mobility;
·toilet;
·washing and dressing;
·eating; and
·therapy.
(Exhibit P1, pp 177, 178).
Nursing Care Plans were prepared from the assessments. In the 14 months during which the plaintiff was a resident, two Nursing Care Plans were prepared – the first dated the 28^th November 1995 and the second dated the 30^th October 1996 (Exhibit P1, pp 35-68).
The assessments and Plans became the focus of much criticism by Madam Leong in her evidence. I will turn to this topic later.
I return to the narrative.
The Pembroke Nursing Home was a small 23 bed establishment which I find exuded a happy family atmosphere (1233, 1332). It was sold in February 2001 (926, 945) and ceased operation in December 2001 (1089).
The plaintiff shared a room, inter alia, with her long-time friend Mrs Teng (90-92). In October 1996 Mrs Teng suffered a stroke (67), following which she was “completely bedridden and just couldn’t do anything” (70). In particular, Mrs Teng could not speak (67). The plaintiff “looked after” Mrs Teng (92).
The plaintiff would spend parts of her day sitting in the chair near the window adjacent to her bed (92). Before Mrs Teng’s stroke she and Mrs Teng would talk. For a time, there was a third Chinese lady in the room named Wong. The three women all “got on quite well” (70). They watched Chinese videos. The plaintiff herself had her own television and video player (70, 190). The Nursing Home provided Chinese meals, and from time-to-time the plaintiff’s family, who visited regularly, brought in Chinese food for her (68). There were nurses on the staff who spoke both the Cantonese and Mandarin language (194).
Dr Yee Leong continued to visit the plaintiff at least every Thursday and invariably took her out to the Adelaide Central Market where they had lunch (767, 768). Dr Leong said that his mother enjoyed these outings. She would have a Chinese meal and buy a few things. He said she was alert and communicative (76, 88). Madam Leong, who was working in Port Augusta in the early part of her mother’s time at Pembroke, would collect her from the Nursing Home on Friday and take her home to the Dernancourt house every weekend. She would return her to the Nursing Home after lunch each Sunday (192). In the later part of the plaintiff’s time at Pembroke, the regime changed to once per fortnight. The plaintiff’s pharmacist son visited her on Sundays and often brought in Chinese meals for her (193). So too, the plaintiff’s goddaughter would collect both the plaintiff and Mrs Teng and take them out for “dim sum or yum cha” (193).
The plaintiff had a reputation with the staff of being a strong-willed, feisty and determined resident who made it known if she was not happy with the standard of care (69, 1326, 1327). She knew precisely what medication she was meant to take (1322). When being transferred, the plaintiff was cooperative and knew what to do (1321, 831). She required assistance with “activities of daily living” (ADL’s), which included “showering, dressing, grooming, eating and mobilising” (1321). As to these matters, I accept the evidence of Ms Fiona Hatchard who, as previously indicated, nursed the plaintiff during her time at Pembroke and whose duties included providing the plaintiff with “ADL” assistance.
The plaintiff needed to go to the toilet frequently. As a general rule for the trips, early in the day she would walk to the toilet, but with assistance. Later in the day, when she was not so strong, she would be taken on a shower-chair. The toilet was 20 to 25 metres down the corridor from her room (1505; Plan Exhibit P11). When walking to the toilet, Madam Chan would use the quad stick in her right hand and walk with the carer by her left side supporting her (82-89, 1333). Once at the toilet, two carers were necessary to assist her (1325). The journey to the toilet would take five to seven minutes (1325). When Madam Chan was taken out of the Nursing Home for excursions or the weekend by, for instance, her daughter, Madam Leong, and Dr Leong, the initial transfers at departure time from the wheelchair to the seat of the motor car, for instance, were effected by two of the staff at the Home, but thereafter both Madam Leong and Dr Leong managed the necessary further transfers alone. Both said they coped adequately (209, 631, 829, 830).
The philosophy at the Nursing Home in respect of mobility was to keep elderly, frail and even disabled patients, such as Madam Chan, as mobile as possible. Accordingly, whilst there was a risk of frail residents falling, a balance had to be struck between safety considerations on the one hand and the need to foster some dignified independence on the other (1331, 1332). That philosophy for caring for the aged was endorsed by both Dr Henschke (1195) and Dr Toh (513) and moreover was shared by the plaintiff’s family (Madam Leong, 85; Dr Leong, 836).
Such was the plaintiff’s existence at the Pembroke Nursing Home.
I now turn to the attack on the two Nursing Care Plans and the plaintiff’s contentions about them.
4.8 Assessments – Nursing Care Plans
Counsel, Mr Pickhaver, contended that the Plans, the assessments and the Nursing Notes represented the plaintiff as being worse off than she really was, and that the motivation was to recoup from the Commonwealth Department of Human Services and Health, a higher level of funding than might otherwise be payable. When challenged about the relevance of the topic, (706), he contended – correctly in my view – that the state of the plaintiff’s health prior to the fall was directly relevant to quantum and further he claimed that the topic was also relevant to whether Pembroke Nursing Home and homes similar to it were suitable to care for such high dependency residents as the plaintiff became after the 1997 fall. Finally, Mr Pickhaver contended that the exploration of the issue was relevant to credit. In the end, I admitted the evidence (705-707). It is necessary now to deal with his contentions.
4.8.1 Criticism re Behaviour
The first criticism focussed upon that part of the Nursing Care Plans headed “Behaviour”. Mr Pickhaver contended that the entries disclosed a lack of understanding of the plaintiff’s needs by the nursing staff. This contention was primarily founded upon the evidence of Madam Leong who expressed incredulity at what was said in the Plan about her mother’s behaviour. I note however that not only the assessments, but also the contemporaneous Nursing Notes supported the Plans. Mrs Barter, denied the allegations of error and misrepresentation (965). I accept her evidence, which in essence was that the assessments correctly reflected observations and tests conducted on Madam Chan over a period of time by a number of people. She made the point that the Nursing Notes were written independently by “five or six well-trained registered nurses who were observing closely ...” (965). As to duping the Commonwealth Department, Mrs Barter categorically denied that serious allegation, (1026, 1027), and explained that the operation of the Home was subjected to checks by the officers of the Aged Care Commonwealth and Nursing Bureau. She said these checks occurred two or three times a year and without warning and consisted of two nursing officers over a period of two days or so, examining not only the paperwork in relation to say four to six of the residents, but also the residents themselves (965-968).
I reject the plaintiff’s contentions “that the Nursing Care Plans were prepared with Government funding in mind” and the clear implication that they dishonestly misrepresented the plaintiff’s condition. I note that the plaintiff had scant evidence to make what was tantamount to an allegation of fraud against the defendants. I expected that such a serious allegation would have been supported by more than the belated protestations of Madam Leong concerning the reliability of the Nursing Care Plans. For instance, if it were so, I would have expected to hear some testimony to the effect that Madam Chan’s Resident Classification, namely Category 2, was or was not appropriate. There was no such evidence.
4.8.2 Criticism re Cognitive Impairments
The next criticism was that the Nursing Care Plan asserted incorrectly that the plaintiff was cognitively impaired. I have dealt with that but not the related complaint that the failure to communicate this view to the plaintiff’s family and to Dr Toh was “an indication of the lack of appropriate care”. Mrs Joylene Murch, an experienced nurse and manager of two aged care facilities, and a witness whom I accept to be an expert on the nursing of frail and disabled elderly people, said that she was surprised that Madam Chan’s family were not shown the Nursing Care Plans and that disclosing such material was her practice (1172-3).
Perhaps the Home should have discussed at least the Plans with the family. I do not need to make findings about that because I am not prepared to leap from such a view to what is suggested to be the consequence, namely that the failure to do so is an indication of a lack of appropriate care by the defendant. Accordingly, there is no need for me to weigh up Mrs Barter’s responses to this criticism (932, 932 and 965).
4.8.3 Criticism re Continence and Toileting
The third criticism concerns continence and toileting. In particular, the plaintiff’s case was that the plaintiff was not incontinent, but rather she had to go to the toilet regularly and had a high degree of urgency. Again, the plaintiff’s counsel urged me to conclude that the Home’s conviction, that the plaintiff was incontinent, demonstrated that the nurses did not fully appreciate the plaintiff’s needs. There was considerable evidence about this which does not need agitation. Suffice it to say I am prepared to accept that when Madam Chan was home with her daughter on the weekends or out with her son Dr Leong there were no episodes of soiling, no doubt because there was virtually a “one-on-one relationship” of carer and patient such that in every instance Madam Chan’s urge to go to the toilet was satisfied and satisfied promptly. But equally, I am prepared also to accept that in the best run nursing home such an instant response could not reasonably be expected (explanation of Mrs Barter 1060). In all, I take the view that the Plans relating to continence and toileting and the way in which the plaintiff was cared for in that respect were reasonable. In particular, I find that contrary to the plaintiff’s contention, there was a full appreciation of, and attendance to, the plaintiff’s needs (1053-1056).
4.8.4 Criticism as to mobility
The fourth criticism was as to mobility. This criticism touches upon the crucially relevant matter of “transfers”. In the Nursing Care Plan of the 28^thNovember 1995 under the heading “mobility” and the sub-heading “intervention/action” is the following:
“Bed mobility 2 assistants
Transfer 2 assistants
Orthodox Lift
Ambulation 1-2 assistants with a quad stick”
(see Exhibit P1 page 62)
Then in the second Nursing Care Plan of the 30^th October 1996 is the following:
“Bed mobility   2 assistants total assist
transfer              1-2 assists
Orthodox Lift
Ambulation      1-2 assists with quad stick (requests 1 assist to maintain independence Mrs Chan prefers not to use blue straps or hydraulic lifter)
(see Exhibit P1 page 46)
First of all, counsel for the plaintiff contended that there was no adequate support in the evidence for the Home relaxing the transfer requirements from “2 assistants” in 1995 to “1-2 assistants” in 1996. He added that while Mrs Barter and Fiona Hatchard said that the plaintiff had improved, they did not indicate in what way. Nor said counsel, Mr Pickhaver, were there any guidelines indicating how a nurse on a particular occasion would be able to decide whether one or two assistants was necessary. In my view, Mrs Barter and Ms Hatchard were excellently placed and well qualified to assess whether some improvement had taken place. Both said there was improvement (Barter 970, 1008; Hatchard 1329). As to the exercise of discretion as to whether one or two assistants were required, Mrs Barter said it depended upon whether the resident was having a good day or a bad day. At page 970 of the transcript Mrs Barter said:
“Q.I take it from that that the document speaks for itself, but you were confident that Madam Chan had rehabilitated to the extent that she was a one to two transfer depending who how she presented on the day in question.
Q.What did it depend on.
A.It did depend. She did have good days and bad days. Her state of health had stabilised so that she was fairly predictably a one person transfer on most days.
Q.Did you review these assessments.
A.Yes, we were required to review them.
Q.When you say ‘we’, you.
A.Yes. But the Health Department required us to do an annual review.
Q.What I am getting at is an assessment of a 1-2 transfer is that something you personally looked at and agreed with.
A.Yes, we had registered nurse meetings and assessments were discussed at registered nurse meetings.”
(the italics are mine)

It is not without significance that both Madam Leong and Dr Leong had no difficulties executing transfers of their mother alone when she was out of the Home with them. Accordingly, I reject these contentions. I find that in keeping with the philosophy at the Home the transition from two assistants to one was not effected arbitrarily – but was based on the view that the plaintiff’s mobility had improved. I also find no need in all the circumstances for some documented list of criteria to be laid down to guide the staff in their decision as to the number of assistants at the transfer.
4.8.5 Criticisms to noting that Madam Chan had left-sided hemiparesis
A fifth criticism was that there was nothing in the Plan indicating that the plaintiff suffered a left-sided hemiparesis and therefore required assistance on the left side. Ms Murch said that it would have been a good idea to have a note specifically to that effect under the heading “mobility” in the Nursing Care Plan but she said:
“It would probably be a good idea, but it wouldn’t be necessary because it would have been handed over every time and anybody who has had a right CVA, staff are well aware there is left-sided weakness, they have training in this. The professionals are automatically aware of it. Personal carers learn it in their course, certificate three, they actually cover strokes and CVAs.”
(1174)
Accordingly, I reject the contention. If needs be, I would also draw upon Mrs Barter’s retort that the Notes as a whole made it clear that the plaintiff had a left-sided hemiparesis.
In all, I do not accept that the Plans are deficient in the way contended for and that therefore they are indicative of inadequate care provided at the Home and nor do I consider that the debate in the evidence about any of these maters adversely affected the credit of the defendant’s witnesses and in particular Mrs Barter.
4.9 Standard of care provided by Pembroke Nursing Home
I find that the family’s initial confidence in the Pembroke Nursing Home being able to care for their hemiparetic mother was well justified. As previously indicated, it provided a happy family atmosphere (1233, 1332). Both Dr Leong (800) and Dr Toh (507, 907) expressed their satisfaction at the standard of care accorded to Madam Chan. Madam Leong expressed no dissatisfaction until after the fall (751). I infer therefore, that for the 14 months during which her mother was at the Home she was content with the care, at least as it was then evident to her. The plaintiff’s aged nursing care expert witness, Mrs Judith Manning, agreed that the Nursing Care Notes (Exhibit P1), indicated that the Pembroke Nursing Home was a conscientious institution which ostensibly provided a “high standard of care to its patients” (559). Mr Teng-Hill in his evidence also spoke highly of the care provided by the Home to his mother (68, 71).
In all I find that the Pembroke Nursing Home provided high quality care for its residents including Madam Chan, and was capable of caring for her even after the fall.
5. The fall 9^th January 1997 and its aftermath
5.1 Eastwood’s qualifications and experience
Michael Eastwood was born in New Zealand on the 4^th September 1955. His experience in nursing began soon after arriving in Adelaide in January 1996 (1220). In April of 1996, he started volunteer work at the Julia Farr Centre. That work involved helping with physical activities such as woodwork, art and craft. He did this twice a week and it inspired him to seek a more formal career in nursing. He obtained a work experience position at Pembroke Nursing Home with the assistance of his sister-in-law, Fiona Hatchard (1223). He started in July 1996 and at about that same time commenced a nursing course at TAFE. The nursing course was of six months duration and concluded therefore in December 1996. He passed the course achieving Level 3 (1224). The work experience at Pembroke consisted of working an eight-hour shift for two to three days a week (1224-1226). The work included transferring residents (1226). “Manual handling” was an important component of the TAFE course and both the theory and practice of manual handling were taught (1227). Since these events, Mr Eastwood had pressed on with his nursing career and is now an enrolled nurse (1230). He achieved that after January 1997 and so that part of his career path warrants no further elaboration here.
In his time at Pembroke, prior to the fall, Mr Eastwood had never transferred Madam Chan (1236). He knew her and she him (1234). He knew she was hemiparetic and had seen her from time-to-time walking with assistance and using her quad stick (1234, 1235). He had seen her being transferred a number of times and observed the nurse assisting her on her weak left side (1235). He attended changeover meetings where at the change of staff the physical condition of residents, including Madam Chan, was discussed (1237). He had competently carried out transfers in the six months he was at the Home (Eastwood 1235, 1336; Hatchard 1324, 1325). He became a paid employee of Pembroke Nursing Home on and from the 9^th December 1996 (961). In the months up to the time of the fall, Mrs Barter observed him on a daily basis and in particular saw him properly carrying out, amongst other things, transfers (961, 962). Finally, the nursing expert, Joylene Murch, whose evidence I accept, saw no difficulties or inappropriateness in Michael Eastwood transferring hemiparetic residents such as Madam Chan (Exhibit D2 at 2.1; 1511, 1512). She made the point that such work was “part of their role ... part of their everyday duties ...” and that it was not the exclusive preserve of either the registered nurses or the enrolled nurses (1512).
5.2 The fall – Michael Eastwood’s evidence
I now set out Michael Eastwood’s evidence about this crucial issue. Much of his evidence is challenged. I merely set it out hereunder. I will make findings about it later.
Eastwood was giving out afternoon tea when he saw the red light above Madam Chan’s door. He immediately went to her (1237). She was sitting in an easy-chair near the window and holding her quad stick in her right hand (1238). She said she wanted to go to the toilet. He heard her say the word “toilet” (1239). He indicated to her that he was going for help. He then spoke with the registered nurse, Terri McCulloch, who gave him permission to effect the transfer alone and instructed him to use a shower-chair (1239). He went to a bathroom and obtained a shower-chair and took it to Madam Chan’s bedroom (1240). Upon his return with the chair, he noted that Madam Chan was still in the same position; that is seated in her easy-chair holding the quad stick (1241). He positioned the shower-chair to her left and close to her (1241, 1242). Madam Chan was aware of the shower-chair. He noticed that she was stable and awake and very much aware of what was happening (1242).
Eastwood then indicated to Madam Chan by gesticulating, that he was about to transfer her from the easy-chair to the shower-chair. His recollection was that she responded by giving a nod of approval (1243). He said that he made sure that she was positioned correctly, namely that her feet were approximately under the front of the chair and that her bottom was forward in the chair so that her groin area was over her feet. He noted also that the quad stick was in position near her right foot (1244-1246). He then told her that on the count of three she should stand up and then shuffle around to the shower-chair (1246, 1247). Again, according to him, Madam Chan was responsive. He said she was aware and stable (1247).
Mr Eastwood then went on to say that he placed his right hand under Madam Chan’s left armpit and his left hand at the back of her wrist and underneath her left forearm near to the wrist (1247). He said he put his left foot alongside and touching the left foot of Madam Chan with his knee bent and his right leg extended one metre or so backward in a bracing position (1247). He said that again he told her that on the count of three “... you are going to stand up for me and you are going to shuffle around and you go into the chair ...” (1247). According to him, Madam Chan then stood. He said she was “using a quad stick the whole time and we were moving around and she was moving it holding it ...” (1248). It was his view that Madam Chan “stood up well and she appeared stable and alert and importantly she was cooperative and she was aware of what was happening ...” (1248).
Then according to Eastwood, he commenced moving her to the left, in a clockwise motion, towards the chair (1248). He recounted the actual fall which then occurred in the following terms:
“Q.Now, you get to a position after you have demonstrated the shuffle and what happened.
A.Well, without warning she seemed to sort of melt and she sort of ripped out of my grip, she fell this way here.
Q.He indicated the ‘fell this way here’, falling forward and to the left.
A.To the left, yes, landing on her left, yes.
Q.What did you do to try and assist.
A.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.
Q.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.
Q.Right.
A.And it was without warning and so there was no way I could hold onto her basically, just sort of gave way.”
(1249)
Though there was considerable cross-examination of Eastwood on this crucial topic, he remained steadfast repeating his metaphor of Madam Chan ‘melting’, so that he was unable either to hold her or catch her because to use his words her “... whole weight just dropped, just melted ...” (1298). He also described Madam Chan as “appearing to lose consciousness ...” (Exhibit P1 pp 69, 71).
There was debate in the medical evidence as to what might have happened to Madam Chan. The view of the neurologist, Professor Burns, was that she probably suffered a syncopal attack (ie fainting). That view would account for the sudden and brief loss of consciousness and would be consistent with the “melting” spoken of by Mr Eastwood. It is the plaintiff’s case that Madam Chan did not faint, but rather that her fall was provoked by her ordinary frailty, which an appropriate transferring technique would have coped with. I will return to this issue in my findings.
5.3 Immediate aftermath
At the time of the fall, the plaintiff’s roommate, Mrs Teng, was being visited by her son, Mr Teng Hill. However, he was not in the room at the moment of the fall. He was conversing with the nurses nearby and heard a commotion in his mother’s room. He said he ran to the room thinking that his mother had perhaps fallen off the bed. Upon entering the room he found Madam Chan lying face down on the floor (63, 64).
Eventually Madam Chan was placed on her bed and in answer to Mr Teng Hill’s concerned enquiry, Madam Chan said “Yes I am fine, I had a fall” (64). At this time he noticed a black bruise on her left eye (65).
Shortly after Dr Yee Leong arrived and noticed “a large swelling on the left temple region as well as on the left eye which is quite bruised and quite recent ...” (769). Dr Leong confirmed that his mother was alert and lucid (770). He saw no neurological signs which might have betrayed a cerebral haemorrhage. However, rather than embark on their usual outing Dr Leong took his mother to the Burnside Memorial Hospital for x-rays. He said that he saw no neurological signs which would have warranted a cat scan (771). It was late evening by the time Dr Leong returned his mother to the Pembroke Nursing Home. During all that time he conversed with her and did not note anything further concerning her demeanour (771-772). The x‑rays disclosed no fractures (Exhibit P19).
Dr Toh told the Court that she was told of the fall by the Duty Sister who said that “... there was no loss of consciousness but she was just slightly confused ...” (151).
Dr Toh called at the Home at approximately 6 pm on the evening of the 9^th but Madam Chan was then still out with Dr Leong. She was told again by the Nursing Sister that Dr Leong had taken his mother for x-rays. That evening Madam Chan took her daily dose of Warfarin (Exhibit P1 p125; Dr Toh 183).
That evening Madam Chan was noted by nursing staff to be agitated and confused to the extent of disturbing other residents. This behaviour was uncharacteristic of her (see notes Exhibit P1 pp 33, 34, 35).
On the following morning after breakfast Dr Toh again called at the Home. She described Madam Chan that morning as follows:
“... conscious. She was alert. She was able to communicate with me verbally and was answering my questions appropriately. She was following instructions appropriately. She only had a very subtle deterioration in her communication with me in that she was a little bit vague ...”
(154; Exhibit P1 p86).
Dr Toh returned to see Madam Chan later that day at about 3.45 pm. She was then told by the nursing staff that Madam Chan had been drowsy since lunch time (154). After consulting with Dr Leong on the telephone she arranged for Madam Chan to be immediately admitted to the Memorial Hospital. It appears from the Medication Administration Chart that Madam Chan was again given her evening dose of Warfarin before leaving Pembroke for the Memorial Hospital (Exhibit P1, p125; Dr Toh 183).
CT scans taken at the Memorial Hospital at 6 pm on the evening of the 10^thJanuary 1997 disclosed five separate cerebral haemorrhages (Exhibit P13). Subsequent scans on the 14^th January, 21^st January and 3^rd February disclosed further bleeding in the four days between the 10^th and 14^th and then slow involution of the bleeding thereafter.
5.4 The First Incident Report – 9^th January 1997
Mr Eastwood completed an “Incident Report” on the day of the fall, namely the 9^thJanuary 1997 (1250). He identified the report as the document at page 69 of the Pembroke Nursing Home’s notes Exhibit P1. The text of the report is as follows:
“I was assisting Resident to transfer from her chair to a shower chair. This action was in response for the Residents request to go to the toilet. She was standing holding her quad with her left hand while I supported her under her right arm. She appeared co-operative and stable. Suddenly she appeared to lose consciousness and melted, falling to the ground suddenly.
She fell heavily to floor, hitting left shoulder then side of head. She lay motionless on the ground still breathing, fluttering her eyelids. Remaining with her I called out for help.
R.N. McCulloch arrived and took over. I left the room once I received assurance the resident was O.K.”
(the italics are mine)
The above incident report also contains the endorsement of the Director of Nursing who was of course the first defendant, Laurel Barter. The endorsement was in the following terms:
“I have spoken at length to Michael Eastwood. His recollection of the event is clear. His transfer procedure was as instructed.”
According to Mrs Barter, on the 12^th January 1997, Michael Eastwood, at her request, demonstrated his technique in the presence of Sister Terri McCulloch (971). Mrs Barter said that she did not give any thought to the issue of “left side right side” but rather was concentrating upon whether Michael Eastwood had followed the correct procedure (987, 988). So it was that Mrs Barter completed the above endorsement.
5.5 Madam Leong’s visit to Pembroke Nursing Home after her mother’s fall
At the time of the fall Madam Leong was in Malaysia. Upon her return, and after the family had decided that she would look after her mother, she attended at the Pembroke Nursing Home. There she read the first incident report and noting that it asserted that her mother had her quad stick in her left hand and was being assisted on her right side, she concluded that her mother was being transferred incorrectly. She pointed out the error to the nurse who showed her the report (226-239, 681). She said also that at the time Sister Terri McCulloch showed her precisely where her mother was found on the floor in the room. She drew the position on a plan (Exhibit P1; 235-236, 378-379).
5.6 The Second Incident Report – 2 February 1997
This query of Madam Leong was passed on to Mrs Barter (987). Michael Eastwood was not on duty at the time. Mrs Barter called him into the Nursing Home and without alerting him to the problem, asked him again to demonstrate again what had happened (989-993). On this occasion, which was the 2^nd February 1997, according to Mrs Barter, Michael Eastwood demonstrated on Nurse McCulloch. He supported her on the left side and held her left arm and hand. He also indicated that she had held her quad stick in her right hand (992-993). When his attention was drawn by Mrs Barter to his original Incident Report, he explained that he had made a mistake and then completed a further “corrected” Incident Report (993). Michael Eastwood’s own evidence was to similar effect, namely that on the occasion of the 2^ndFebruary 1997, after he had demonstrated the transfer to Mrs Barter, he realised having looked at his original Report of the 9^th January 1997 that he had made a mistake and so he completed the second Report which is found at page 71 of Exhibit P1 (1256-1257). In cross-examination, Mr Eastwood explained the mistake in the following crisp terms:
“I think I was just flustered at the incident and I got my left and right mixed up” (1301)
The text of the second report is as follows:
“I was assisting Resident to transfer from her chair to a shower chair. The action was in response for the Residents request to go to the toilet. She was in a fully standing position. She was holding her quad with her right hand while I supported her under her left arm. She appeared cooperative and stable and was happy that I had come to her assistance. Suddenly without warning she appeared to lose consciousness and melted, falling to the ground. She fell clearly yet heavily to the floor. She hit her left shoulder then side of head on the round. She lay motionless on the ground still breathing, fluttering her eyelids. Remaining wither I called out for help. R.N. McCulloch arrived and took over. I left the room once I received assurance.”
(the italics are mine)
As previously indicated, in February 1997 Madam Chan was taken home to Dernancourt where she is being cared for by her daughter. There is no dispute that her present parlous state has resulted from the haemorrhages. She is now helpless and dependent. She has only a primitive capacity to communicate and is totally confined to a bed or wheelchair. She has some limited awareness but cannot eat or speak. She is effectively a quadriplegic and is fed through a gastrostomy tube into her stomach.
I pause here to deal with the issue of liability.
6. Liability
6.1 Applicable legal principles
First of all, it is trite law that the defendants will be vicariously liable for the negligence of Michael Eastwood – their servant, if committed in the ordinary course of his employment (see Clerk & Lindsell 18^th Ed Chapt 5). It is clear that Michael Eastwood was both the servant of the defendants and acting within the course of his employment at the time of attempting to transfer Madam Chan.

Both Michael Eastwood and the defendants trading as the Pembroke Nursing Home have been sued as entities having special skill and competence. Michael Eastwood was a trained carer. The defendants operated a nursing home which was held out as being a place which provided a system of care for the elderly and infirm including having competent staff, safe equipment and safe premises. As a result, the standard of care applicable is not determined by reference to the “person” on the Clapham omni-bus. In Rogers v Whitaker (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 487:
“In Australia it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill (Cook v. Cook (1986) 162 CLR 376, at pp 383-384; Papatonakis v. Australian Telecommunications Commission (1985) 156 CLR 7, at p 36; Weber v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider Andrews Associates Pty. Ltd. (1987) 2 Qd R 533, at p 542.).”
Some guidance as to the precise articulation of the standard of care applicable can be gleaned from the cases involving professionals such as doctors, lawyers, architects and accountants. In F v R (1983) 33 SASR 190, which concerned a medical specialist who failed to advise a female patient that a tubal ligation procedure was known to have a failure rate of less than 1 percent, King CJ said at 190, 191:
“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of care is that to be expected of an ordinarily careful and competent practitioner of the class which the practitioner belongs. The standard required of the appellant was therefore that of an ordinarily careful and competent specialist in gynaecology.”
In Voli v Inglewood Shire Council (1963) 110 CLR 74, which case concerned the standard of care owed by an architect, Windeyer J said at 84:
“An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from a breach of his contract or in tort.”
It is important to note that the standard of care is not necessarily higher because professionals or people professing special skills are involved. Rather, what is regarded as a reasonable standard will be that which ought to be achieved by the professional person or entity involved (see Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 at 74 per Moffitt J). Further, it is notable that the standard of care is still objective. It is not referrable to the particular skills and expertise of the individual professional or entity involved but is referrable to the skill and competence which ought to be applied by such persons and such entities (see Professional Negligence by Jackson & Powell 5^th Ed. 2002 para 116 onward; Andrew Masters Hones Ltd v Cruickshank & Fairweather (1980) RPC 16 at 18).
So, Michael Eastwood was obliged to effect the transfer of Madam Chan using the degree of care and skill expected of an ordinarily careful and competent carer of elderly frail people. As far as the defendants are concerned, they were obliged to operate the Home by having in place a regime of care reasonably expected of a nursing home of that size and type (see Jackson & Powell on Professional Negligence 5^th Ed. paras 12-160, where though the authors deal with hospitals, the principles there are applicable to nursing homes).
Allowing for the specialised content of the standard of care, it is necessary for the plaintiff to prove on the balance of probabilities that:
·the defendants owed the plaintiff a duty of care;
·the defendants acts or omissions by themselves or by their servant, or agent Eastwood, breached that duty of care;
·the plaintiff suffered a loss;
·the loss was caused by the defendants breach of duty; and
·the loss suffered was not too remote in the sense that the loss or injury complained of was not only caused by the alleged negligence but also was an injury of a class or character which was reasonably foreseeable as a possible result of the negligent act or omission.
(See Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322; Wyong Shire Council v Shirt (1980) 29ALR 217 per Mason J at 218, 221).
There is no issue in this case as to whether the defendants owed the plaintiff a duty of care. Clearly the defendants owed Madam Chan a duty of care. The issue here is whether there has been a breach of the duty given the specialised standard of care applicable.
6.2 Contentions on Liability
The plaintiff’s counsel at the outset contended that the “defendant has given at least four versions of what occurred on the 9^th January 1997, all of which are inconsistent one with the other”. Indeed, the evidence discloses that Michael Eastwood has separately recounted the fall of Madam Chan on the following occasions:
·on the day of the fall, namely the 9^th January 1997 in the first Incident Report;
·on 12^th January 1997, when in the presence of nurse McCulloch he demonstrated to Mrs Barter what happened;
·on 2^nd February 1997 when again in the presence of nurse McCulloch and following the challenge by Madam Leong he demonstrated to Mrs Barter what happened;
·on 2^nd February 1997 in the second Incident Report; and
·in his evidence in the trial of the action.
The plaintiff’s case is that the first account, as set out in the first Incident Report is the most likely explanation and should be the finding of the Court and that the subsequent exculpatory accounts are all inconsistent one with the other and should be rejected. A finding that the fall occurred as per the first Incident Report would effectively be a finding that the carer Michael Eastwood was negligent in commencing to transfer the plaintiff by supporting her on the incorrect right side such that she would inevitably fall to her weak left side. Consequently, the plaintiff argues the defendant would be held vicariously liable for the negligence of their servant, Michael Eastwood.
Alternatively, it is contended by the plaintiff that the defendants are directly liable in negligence in that they failed to properly instruct or supervise Mr Eastwood in the handling procedures applicable to Madam Chan. In particular, it is contended that the defendants should have particularly instructed Mr Eastwood and supervised his first movement of Madam Chan and by omitting to do so the Home was negligent and such negligence resulted in the plaintiff’s fall.
The defendants’ response is that Michael Eastwood was not negligent in effecting the transfer but commenced it using the appropriate technique, but Madam Chan’s collapse was so sudden and emphatic that he could not maintain a hold on her and prevent her from striking the floor.
The defendants contend that Michael Eastwood made a simple mistake in the first Incident Report and that thereafter in material respects his accounts of what happened have been consistent.
As to the allegation of direct negligence, the defendants contend in summary that Michael Eastwood was well qualified to effect the transfer and that no instruction or supervision was necessary.
6.3 Findings on Liability
6.3.1 Loss of consciousness or not?
In the trial no less than four causes for Madam Chan’s initial collapse were postulated, namely:
·fainting (ie syncope) arising from change of posture;
·transient ischaemic attack;
·the beginnings of the stroke, namely haemorrhaging which brought on a fainting episode; and
·falling to her weak left side because she was supported on the incorrect right side.
A syncope, or fainting, is brought about by an insufficiency of blood supply to the brain which provokes dizziness and then a brief loss of consciousness, usually associated with falling down. The falling down has the effect of restoring the blood flow. The victim usually wakes immediately and is lucid but there is a period of amnesia (Burns 317). Professor Burns explained that an elderly person assuming an upright position may faint because “the reflexes that maintain the perfusion of the brain may not work quickly ...” (Burns 318). A transient ischaemic attack is a loss of blood supply, not to the brain as a whole as in the case of syncope, but to a focal area of the brain as a result of blockage of an artery by disease or a clot for instance (Burns 317, 319; Schaeffer 106).
Both Professor Burns (319) and Mr Schaeffer (123) shared the view that Madam Chan did not experience a transient ischaemic attack. Professor Burns said that, whilst it is possible the collapse could have been “the first manifestation of some degree of intracerebral bleeding” (Exhibit D2), Madam Chan probably suffered a simple fainting episode (319).
Mr Schaeffer did not categorically disagree with Professor Burns in this respect. The following exchange took place with his counsel:
“Q.You are aware that Professor Burns postulates a syncope, that is a fainting episode.
A.Yes.
Q.Or something which is called a TIA, trans ischemic attack, that may have precipitated the fall in this case. Do you consider that either event is likely.
A.Yes. I don’t want to misquote Professor Burns. My impression was he didn’t seem to think that a TIA was likely. I would agree with him there. A syncopal attack is a possibility, because patients like this, elderly patients with vascular disease, have an unstable blood pressure, and they can have some difficulty adapting to the erect position, if they moved suddenly, say from sitting to the erect position, and the blood pressure is perhaps unstable and too low at that stage. That can cause a syncope. That can contribute to a fall anyway. I think Professor Burns’ comment in that regard is reasonable.”
(104)
I accept that Mr Schaeffer accepted simple syncope as a possibility rather than a probability. Further, he did lend some limited support to the plaintiff’s contention that there was no fainting by suggesting, for instance, that the fact that Madam Chan had a memory of the fall would be some indicator that she was not unconscious at the time of the fall (103).
So it can be seen that in that limited and qualified sense Mr Schaeffer is supportive of the plaintiff’s case that the initial collapse was due to a careless method of transfer by either supporting on the wrong side or using an otherwise inadequate technique.
The plaintiff’s counsel, in a methodical way, pointed me to the evidence which he contended supported the case for no loss of consciousness. These points included:
·Madam Chan suffered no amnesia, but was able to recount to Mr Teng Hill immediately after the fall that she had a fall;
·Madam Chan lucidly recounted the episode to her son;
·Dr Toh said that the Duty Sister at the Home telephoned her and told her that Madam Chan suffered no loss of consciousness;
·Mr Schaeffer postulated that if Madam Chan had truly been unconscious then “she wouldn’t have known she had a fall” (140);
·Professor Burns said that he would have expected some previous episodes of fainting and there were none (359);
·Dr Henschke said that loss of consciousness would be less likely if she could “give a convincing and appropriate recollection of the circumstances of the fall ...” (1206);
·the fact that Madam Chan, on Eastwood’s account, rose to her feet and took some steps militates against a fainting episode caused by rising to her feet;
·there was no history of previous losses of consciousness.
I find none of the above points convincing. Though it’s hardly a matter for expert testimony, I find compelling Professor Burns’ retort, that the fact that Madam Chan recalled that she had a fall, could well have been a quite ordinary process of deduction (345). It was by any account a short-lived uncomplicated happening. So not much can be drawn from the fact that she told her son she had a fall. Indeed given the sort of person she was, one could speculate about why she would not have complained to her son that Michael Eastwood had attempted to transfer her incorrectly if that had been the case.
What the Duty Sister told Dr Toh, namely that there had been no loss of consciousness, constitutes an admission against the defendants since it comes from a person in authority in the defendants’ organization whose proper business would be to convey such information to the medical advisor of one of the residents (see Edwards v Brooks (Milk) Ltd [1963] 1 WLR 795; Pomery v Rural Hotels Pty Ltd (1973) 5 SASR 191). However, for all that, it is hardly probative of the state of Madam Chan’s state of consciousness because the only persons present at the time of the fall were Madam Chan and Michael Eastwood. It was not suggested that Michael Eastwood said anything other than what is in the two Incident Reports about Madam Chan’s state of consciousness. Therefore, I consider that the testimony of Dr Toh, as to what was said to her by the Duty Sister, is not compelling evidence of the plaintiff not having lost consciousness.
Certainly there were no recorded previous similar episodes of “unconsciousness” during the plaintiff’s time at Pembroke but there were several previous episodes of falls; dizziness and unexplained injuries which Mr Schaeffer agreed (119-122) could have been caused by, amongst other things, fainting episodes. In any event, on the assumption that there was no previous history of syncope, Mr Schaeffer considered it “was a small point against a syncope occurring on that particular day” (104).
Finally, I turn to the argument that the delay involved in taking a few steps or shuffling after having stood up eliminates syncope as an explanation. Professor Burns said that whilst a syncopal episode usually arises immediately upon standing up, postural hypotension leading to fainting can occur “some seconds or even minutes after standing up” (360).
Urine was discovered on the floor at the place of the fall. I infer that Madam Chan urinated in the course of the fall. Professor Burns said that “the fact that she was incontinent” is quite in keeping with the hypothesis that she had “a faint or syncopal episode” (322).
I find that in all likelihood Madam Chan did faint by reason of postural hypotension at the point of Michael Eastwood turning her to sit in the shower-chair. That the fainting was due to “the first manifestations of intracerebral bleeding” is a possibility only. In so finding, I have adopted the views of Professor Burns. I hesitate to say there are any differences between his views and those of Mr Schaeffer. If there are any differences on this topic they are matters of emphasis only.
I have left Professor Burns’ postulation that the unconsciousness was possibly the first manifestation of intracerebral bleeding as nothing more than a possibility because it seems to me on all the medical evidence unlikely that a bleed sufficient to render her unconscious would then abate so that she could venture out happily with her son talking, transferring and otherwise, not exhibiting any neurological signs. In any event, this was not agitated to any great extent by either side. It was left as a mere possibility by Professor Burns.
I note 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” (319), and so my finding, as to Madam Chan having lost consciousness, will depend on Eastwood being accepted as credible. So with that contingent finding in mind, I turn to my findings as to the evidence of Michael Eastwood.
6.3.2 Credit of Michael Eastwood
I accept the evidence of Michael Eastwood as truthful and reliable. He was a patently honest witness. Further, there is support for his evidence in other evidence both direct and circumstantial, which I find convincing. I turn to examples of this other supportive evidence.
6.3.3 Other convincing evidence which supports or is consistent with testimony of Eastwood
·Firstly, Michael Eastwood said that upon Madam Chan activating the red light he attended upon her twice. On both occasions she was poised with her right hand holding the quad sick. Against that, the plaintiff’s contention is that I should find consistent with the first Incident Report that Madam Chan was at least resting her disabled left hand on the quad stick and that the transfer was then commenced with Eastwood supporting her on the incorrect right side. There was much uncontested evidence which established beyond sensible debate that the plaintiff had no functional capacity in her left arm before the fall and so did not use the quad stick with her left arm or hand at all (eg Madam Leong 190, 191, 684; Dr Leong 806; Dr Toh 512; Nurse Hatchard, 1321). Rather, she used the quad stick with her viable right arm and assisted in transfers by pushing herself up out of the seat with her right hand and taking her quad stick in the right hand. Accordingly, Michael Eastwood’s sworn evidence about Madam Chan readying herself with her right hand grasping the quad stick is in accordance with this other evidence.
·Secondly, Michael Eastwood said that he then proceeded with the transfer by supporting Madam Chan on her weak left side. The plaintiff’s contention is that I should find that Michael Eastwood supported Madam Chan and commenced the transfer on her incorrect right side. Again, there was considerable uncontested evidence to the effect that Madam Chan was a feisty relatively alert resident who knew what to do and would make it known if something was amiss. Fiona Hatchard described an instance where Madam Chan resisted the presentation to her of her quad stick on the wrong side (1321) and she would resist attempts by carers at the Home to administer incorrect medication to her (Hatchard 1322, Dr Leong 831). I am satisfied that Madam Chan would resist any incorrect attempt to move her. So again, Michael Eastwood’s testimony about Madam Chan being cooperative fits in with this other evidence about her behaviour generally and is consistent with his evidence that he was not supporting her on her incorrect right side.
·Thirdly, Michael Eastwood said that Madam Chan, with his assistance, rose to her feet and “shuffled around ... into the chair”. The shuffle was to the left in a clock-wise motion through 90^o. The plaintiff’s counsel submitted that this was a new element which was added for the first time in the trial and was therefore a sign of fabrication. However, the fact of there being some steps or movements and turning before the fall is supported by the evidence of Mrs Barter who testified that on the 12^thJanuary 1997 Michael Eastwood demonstrated that Madam Chan took some three steps forward from her chair with some turning before she fell (976, 991). So again, what Mr Eastwood said at trial is consistent with his virtually contemporaneous demonstration to Mrs Barter.
·Fourthly, Michael Eastwood said that Madam Chan, in the midst of the transfer, “melted” and “ripped out of my grip” (1249). He described her as appearing to lose consciousness and melting. The plaintiff’s case is that at no stage was Madam Chan unconscious, rather she was unsupported on her weak left side and fell that way to the floor. However, Professor Burns postulated that Madam Chan fainted. He was not deflected from that view. Mr Schaeffer accepted it as a possibility (104). So Professor Burns’ evidence on this topic is consistent with the evidence of Eastwood, though this view is underpinned by an acceptance of Michael Eastwood’s credibility and so there is a “bootstraps” flaw to be acknowledged.
·Fifthly, on the 12^th January 1997, Michael Eastwood demonstrated to Mrs Barter what occurred. There was a challenge to whether a demonstration was done by Eastwood on this occasion. I accept Mrs Barter’s evidence that it was (1042). Mrs Barter said that Mr Eastwood demonstrated supporting Madam Chan on her weak side and indicated that she had hold of the quad stick in her good hand (976-992, 1035-1045). She did not particularly note “right and left” but was concentrating on the procedure used. She said the first demonstration was the same as the second (ie 2.2.97) when “right side left side” was of particular interest to her (988-992). And on that second occasion he demonstrated Madam Chan holding the quad stick in her right hand and him supporting her on her left side. And so Mrs Barter’s evidence as to this first demonstration is evidence of Michael Eastwood’s consistency.
·Sixthly, on the 2^nd February 1997, after Madam Chan’s discovery of the first Incident Report, Michael Eastwood, at Mrs Barter’s request, again demonstrated to her what occurred. Again Mrs Barter’s evidence as to this second demonstration is evidence which is consistent with Michael Eastwood’s testimony.
·Seventhly, the first Incident Report itself is, in part, support for Michael Eastwood’s evidence. It is almost a contemporaneous account of the fall and, save for it being in conflict with his evidence as to the “left and the right”, it is consistent with his evidence.

Accordingly, I find that the cerebral haemorrhages and the resultant quadriplegia and other associated disabilities were caused by the blow to the head exacerbated by the existence of cerebrovascular disease and the effects of Warfarin. In particular, expressed in terms of the onuses which apply in this case, I take the view that the plaintiff has made out a prima facie case that the haemorrhages began in the form of a “slow bleed”, as a result of the fall and blow to the head, and that the defendants contention that the causative event was coagulopathy and/or stroke has not displaced that prima facie case. It is a possibility only. Therefore the plaintiff on the balance of probabilities has established causation. It follows that I do not find compelling the defendants hypothesis that the temporal connection between the fall and the haemorrhages was an “historical accident”. That is, I do not accept as probable that Madam Chan just so happened to suffer a stoke within hours of the fall (ie onset of her cerebrovascular disease, exacerbated by Warfarin). In arriving at this finding I have taken into account the full history of Madam Chan’s cerebrovascular disease and the history of incidents of apparent fainting, falling and confusion at Pembroke.
So, having resolved the issue of medical causation in the plaintiff’s favour, I now turn to the assessment of damages.
8.     Contingent Assessment of Damages
8.1    Non-economic losses
8.1.1         pain and suffering
This heading of loss of course embraces not only pain and suffering, but also loss of the enjoyment of the amenities of life and curtailment of life. It is compensation for the plaintiff’s personal suffering so, logically, it is subjective to the plaintiff. If Madam Chan has absolutely no appreciation of her loss, then she ought not recover under this heading. However, the authorities seem to allow for modest awards to even comatosed plaintiffs based on objective loss (see Skelton v Collins (1966) 115 CLR 94; see also the discussion at pp228-224 of Luntz, Assessment of Damages 4^th Edition).
Madam Chan is virtually quadriplegic. She has very little movement of her right arm and hand. She cannot swallow or speak and is fed through a gastrostomy tube into her stomach. She is alert to her surroundings and can hear and see. She can turn her head, however, she is bedridden or confined to a chair. She does not initiate any activity and is wholly dependent upon her daughter for not only making all the decisions for her care, but also for any stimulation. As indicated, I witnessed Madam Chan being attended by her daughter at their home on the 1^st May 2002. Madam Leung’s efforts are, as Dr Henschke said, heroic.
I confirm my findings that Madam Chan now has limited awareness of her parlous state. Though she was to some degree cognitively impaired before the fall, she was at that time, by and large, communicative, alert and sociable (see 4.6 hereof). The plaintiff’s contention is that Madam Chan is probably aware of what has happened to her. My own assessment of her from my brief meeting is that some perception exists. This is essentially a matter for expert opinion and I take the views of both Dr Henschke and Mr Schaeffer to indicate that, whilst Madam Chan’s perception and cognitive abilities are impaired, she would have some limited appreciation of her parlous state. I intend to proceed on that basis.
I turn to the issue of loss of expectation of life. At the time of the fall Madam Chan was 77 years old. She is now 83 years of age and has a range of life threatening medical problems, many of which pre-existed her fall. It was little wonder that Mr Schaeffer, when directed to the issue of life expectancy, said in effect that he was surprised Madam Chan was “still with us” (110, 111). Dr Henschke estimated that Madam Chan, given her medical condition, could expect to live a further “two to three years” (1211). In the end, Mr Schaeffer could not put a figure on his view but said “I will be a bit surprised if she survives another few years” (111).
Bearing in mind that thus far Madam Chan has defied both the actuarial tables and medical prediction, I accept, commensurate with Dr Henschke’s view, that the prospect is that she will live for a further two and a half years or so.
As to whether and to what extent the fall has curtailed her life, I note that it is Dr Henschke’s view that the most immediate life threatening conditions for Madam Chan are pneumonia and the aspiration of food contents into her lungs. These two difficulties arise from the fall and in that sense there is a prospect that the fall has reduced her expectation of life. Quantifying it is all but impossible. In my view, her loss of expectation of life can only be a matter of months.
In all the circumstances, I assess the plaintiff’s non-economic loss at $45,000. I ascribe $30,000 to the past six years and the balance, namely $15,000, is for the future.
8.1.2 Interest on past non-economic loss
The plaintiff is entitled to interest on this heading of loss (see s39 of the District Court Act). The period of the calculation is a matter for the discretion of the Court. In this case there is no reason why the period of the calculation should not date back to the fall (see Wheeler v Page (1982) 31 SASR 1). The interest rate for the calculation is 4% per annum (see MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657). The allowance should be discounted to take into account the accumulation of the principal sum over the period of the calculation. In the light of my decision on liability, there is no point in doing the calculation now.
8.2 Economic losses
8.2.1 Past and Future care – contentions relating to Home Care
The claim of the plaintiff under this heading is contentious. The issue is whether the cost of the home care provided for Madam Chan by her daughter was and is being reasonably incurred bearing in mind the availability of nursing home care.
It is clear law that, though this care is provided gratuitously by the plaintiff’s daughter, the plaintiff is entitled to compensation for it on ordinary commercial rates provided of course it is reasonably incurred (see Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327).
The claimed cost of this home care is calculated over a period of six years for the past and two and a half years for the future, and approximates to one million dollars not including interest. On the other hand there will be no award under this heading if it is appropriate that Madam Chan be cared for in a nursing home because the cost of her care is borne by the Commonwealth Government. I emphasis here that it was common ground that the cost of nursing home care was nil, apart from some minimal expenses embraced by the agreed special damages. It was not a case of the plaintiff being obliged to reimburse the Commonwealth from any damages she may recover from the defendants.
Counsel for the plaintiff, in his address in an articulate way, sought to make out a case for the reasonableness of home care. I refer to all I have said thus far in detailing the care provided by Madame Leong. Suffice it to say Madam Leong attends lovingly to the plaintiff’s every need. Apart from periods of respite she watches over and cares for her mother for 24-hours a day. I accept what Dr Henschke said, namely that no institution could precisely replicate the intensity of such care (1208). Indeed, it may well be that Madam Chan’s ongoing survival has something to do with this devotional care. Dr Henschke all but accepts the possibility of that (1207, 1212). In making out the case for reasonableness the plaintiff relied upon not only the obvious advantages to Madam Chan to be cared for by her loving daughter at her home, but also:
·the evidence of alleged lack of care at Pembroke during Madam Chan’s 14 months stay there; and
·the evidence of alleged unsatisfactory standards of care provided by various nursing homes and the Queen Elizabeth Hospital when Madam Chan was a patient there for, inter alia, “respite care”, namely:
-late 1998, College Grove Hospital where within 14 days there was an onset of gastric ulcers which required Madam Chan’s admission to Royal Adelaide Hospital – Exhibit D6, p23; Exhibit D5, pp20,71;
-during 2000 Klemzig Nursing Home where bed sores developed within two weeks of admission – Exhibit D1;
-during 2001 Semaphore Nursing Home when Madam Chan became dehydrated and required admission to the Queen Elizabeth Hospital – Exhibit P5;
-at Queen Elizabeth Hospital where Madam Chan allegedly began choking on her own saliva.
The defence adduced evidence from Dr Henschke, Ms Murch and Mrs Barter to the effect that adequate care was available in nursing homes for residents with high levels of dependency such as Madam Chan. For instance, Ms Murch who managed the Semaphore Residential Care Centre and the Kiandra Residential Aged Care Facilities said that of the 94 residents in those homes “the majority are as severe or if not more severely dependent as her” (ie Madam Chan) (1118; see also Ms Murch’s report Exhibit D2 at tag 2.2). Dr Henschke explained that a number of homes in the metropolitan area of Adelaide had and presently have the capacity to care for Madam Chan. He said in particular:
“... under Commonwealth standards a capacity to care for this high level of disability would be required. I mean, as an aside, Mrs Chan’s daughter is providing heroic and much admired level of care for her mother, which I think is atypical in the sense of its heroism, but that sort of care is within the scope of a Commonwealth approved nursing facility small or large”.
(1194)
The defendants’ counsel indicated that it was significant that there was no expert testimony to the effect that Madam Chan needed home care and that nursing home care would not be adequate. I agree. I note also that Madam Chan’s general medical practitioner endorsed Pembroke as being able to care for Madam Chan even after the fall. After indicating that she was “very happy” with Pembroke during Madam Chan’s 14 months there, Dr Toh said as follows:
“Q.As the general practitioner in charge of Madam Chan would you be happy with this particular nursing home, that is, Pembroke, caring for her, given her current condition.
A.I think Pembroke Nursing Home provided her with good care.
Q.But now. If the family were struck or stuck with having to return her, that is, say Madam Leong became ill and couldn’t care for her, and one of the alternatives was Pembroke, what would you say about that. Would you think that Pembroke could do the job.
A.I think objectively, as a doctor, yes, Pembroke can provide the service, but I do not know the emotional part of it.
Q.She would be better off with her family if she could stay with her family.
A.Yes.”
(907, 908)
8.2.2 Reasonableness of Home Care – legal parameters
The applicable legal principles are set out in the joint judgment of Gibbs and Stephen JJ in Sharman v Evans (supra) at 573-4:
“Where the plaintiff is to be cared for in the future will not only directly affect the extent of nursing and medical expenses which are to be compensated for; it will also bear upon the extent of her loss of the amenities and enjoyment of life, a lifetime substantially spent in hospital will greatly aggravate that loss. In our view the medical evidence in this case does not justify the conclusion that the defendant should be required to compensate for future nursing and medical expenses on any basis other than that the plaintiff’s future will be one substantially spent in hospital.
The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick C.J. put it in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661 “The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent”, and see Chulcough v Holley, per Windeyer J (1968) 41 ALJR 336 at 338. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest. The present case is however one which does to our minds allow of a definite answer; it is a case of alternatives in which the difference in relative costs is great whereas the benefit to the plaintiff of the more expensive alternative is entirely one of amenity, in no way involving physical or mental well-being. This may be demonstrated from the evidence.”
(See also Campbell v Nangle (1985) 40 SASR 161 per King CJ at 188; Beasley v Marshall (No. 1) (supra) per King CJ at 575.)
8.2.3 Application of principle - findings
I confirm my previous findings that the Pembroke Nursing Home provided a high standard of care and was capable of caring for Madam Chan after the fall as Dr Toh indicated (see paras 4.8 and 4.9 hereof).
I am not persuaded that the series of adverse incidents at, for example, the “respite care” nursing homes since January 1997, indicate that appropriately credentialed nursing homes in the city are incapable of caring for Madam Chan. I accept the evidence from the defendants’ experts that appropriate nursing home care is available in Adelaide. In particular, I accept the evidence of Ms Murch that the Semaphore and Kiandra Homes have had and presently have a capacity to care for the plaintiff. Importantly, I am unable to conclude that the health benefits to the plaintiff, by being cared for at home, as opposed to a nursing home, are so significant that it would be reasonable to incur the cost of home care at the rate of $113,724.00 per annum. There was no such evidence as to health benefits adduced by the plaintiff. I do not regard Dr Henschke’s evidence at 1207-1212 as addressing this issue. Indeed, the acceptable expert testimony was to the contrary. Afterall, it is not without significance that the plaintiff was happily resident at Pembroke with the specific approval of her family and Dr Toh.
The exercise dictated by Sharman v Evans (supra) requires that there be a consideration of “cost matched against health benefits to the plaintiff”. As indicated, if home care is regarded by me as reasonable, the plaintiff’s entitlement to damages for this cost for both past and future, including interest, would be approximately one million dollars as opposed to nil for nursing home care.
In the end I conclude that there are nursing homes well capable of caring for the plaintiff. Further, I find that it has not been demonstrated that the health benefits of home care will be such as to justify the incurring of such costs. Therefore, I find that the plaintiff is not entitled to recover from the defendants damages for past and future care calculated on the basis that the care has been and will be provided at home.
If I am wrong on this issue of reasonableness, then I would award damages under this heading in accordance with the plaintiff’s calculations, namely:
Past care  (6 years at $113,724.00 per annum)               $682,344.00
Future care                 (2½ years at $113,724.00 per annum)            $284,310.00
Superannuation         8%  $77,332.32
  Total                 $1,043,986.63
Interest would be allowed on the past component of this loss (see Marsland v Andjelic (1993) 32 NSWLR 649 at 653-4; s39 of District Court Act). The rate of interest would be the ordinary commercial rate as set out in the Third Schedule of the Supreme Court Rules because it is calculated, not by reference to present day dollar values, but rather to the value as at the time of the incurring of the liability, namely from January 1997 onward. Again the calculation would have to be discounted for the accumulation of the loss over the period since the fall or at least since the care began. There is no point in doing the calculation. It will only be recoverable if I am wrong about not only the defendants’ liability but also the unreasonableness of incurring home care costs.
In the plaintiff’s submission there was included under this heading of home care, an additional claim for Dr Leong’s visits to his mother to enable Madam Leong to undertake shopping. The sum eventually claimed was $17,228.00 based on $13.00 an hour for three hourly visits once per week for 8½ years. I indicate that I do not accept such a claim is justified, and accordingly if required to assess damages under this heading I would not allow it. It could not be contended that Dr Leong’s proposed visits were proven to be satisfying “the plaintiff’s needs resulting from the defendants wrong” (see Van Gervan v Fenton (supra) at 338). Dr Leong was regularly attending upon his mother as a dutiful son before the fall.
8.2.4 Past and Future care – Nursing Home – claim for Madam Leong’s attendance
The plaintiff contended that, in the event that I found the cost of home care to be unreasonable, bearing in mind the availability of nursing home care, there would be emotional and psychological detriments to the plaintiff which could only be met by Madam Leong spending five to six hours per day with her mother at the nursing home. The plaintiff’s counsel submitted that I should allow in the plaintiff’s damages the costs of the attendance of Madam Leong as carer. Based on the Dial an Angel Report of the 28^th May 2002 (Exhibit P17) the claimed sum was approximately $250,000 for past and $135,000 for future. There is no medical or psychiatric evidence which establishes “the need” for this additional service (see Van Gervan v Fenton (supra) a 331-338 per Mason CJ, Toohey and McHugh JJ). In particular, there was no specific evidence adduced by the plaintiff which established a therapeutic basis for the attendance of a carer and, in particular, Madam Leong. Further, if necessary, I would regard the incurring of such an additional expense as unreasonable in accordance with Sharman v Evans (supra). In my view, as it was prior to the fall, 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. Accordingly, I would not allow this claim for the cost of attendance of a carer, namely Madam Leong.
8.2.5 Special Damages
The special damages have been agreed at $1,550 per annum. Accordingly, past special damages are $9,300 (6 x $1,550), and future special damages $3,875 (2½ x $1,550), total of $13,175.
Interest will be allowed on the past component of the special damages on the basis that the plaintiff has incurred those costs. I indicate that interest should be allowed at the commercial rate as drawn from the Third Schedule to the Supreme Court Rules and discounted for the fact that that component of the plaintiff’s past loss has accumulated over the ensuing six years. Again, in the circumstances there is no point now in doing the calculation.
8.2.6 Cost of management of the fund
In the event that I have erred as to liability and/or as to my contingent decisions on the cost of care then the plaintiff will recover a judgment. She is seriously impaired and so a protection order should be made pursuant to s8a of the Aged and Infirmed Persons’ Property Act 1940 in respect of any money judgment made in favour of the plaintiff. In the usual course, Public Trustee would be appointed to take possession, control and manage the plaintiff’s estate, including the judgment monies. Such being the case, the plaintiff is entitled to an allowance, in any damages she may receive for the cost of management of the fund (see Campbell v Nangle (supra)). Any award for past care would in the usual course be paid out of the judgment to the provider of that care together with interest, and would not reach the hands of the Public Trustee (see Griffiths v Kerkemeyer (supra) per Stephen J at 176). So any cost of management of the fund charged by, for instance, the Public Trustee, should be calculated on the basis that such allowances will not reach the coffers of Public Trustee as trustee for the plaintiff.
9. Overall Summary

The carer Michael Eastwood was not negligent in the manner in which he attempted to transfer the plaintiff from her chair to the shower-chair. Moreover, he was qualified and competent not only to transfer her but also to do it alone and unsupervised. The plaintiff fainted and in a state of unconsciousness slipped suddenly from his grip falling to and striking her head on the floor. There was no fault or breach of duty of care by either Michael Eastwood or his employers the defendants. The defendants are neither vicariously or directly liable for the injuries which resulted from the fall. Accordingly, the plaintiff’s case fails at the first hurdle, namely liability and in the action there will be judgment for the defendants.
In the event that I am held to be in error as to the above dual findings as to liability, I conclude:
·that the brain haemorrhages and consequential injuries to the plaintiff were caused by the trauma of the plaintiff’s head striking the floor in the fall and not by the unrelated onset of her pre-existing cerebrovascular disease and/or her pre-disposition to haemorrhage by reason of the effect of the blood-thinning medication Warfarin;
·that the cost of past and future home care, which amounts to approximately one million dollars, is not reasonably incurred bearing in mind the lack of evidence of significant health benefits to the plaintiff by reason of such care and the availability of government funded nursing home care of a high standard; and
·in respect of damages the plaintiff would be entitled to the following:
Non economic losses
         Pain and suffering etc  $45,000 plus interest
Economic Losses
         Past and future home care  nil
Past and Future special damages                  $13,175 plus interest
Cost of management of fund  to be calculated
So as indicated there will be judgment for the defendants against the plaintiff. I will hear the parties as to costs.

[2003] SADC 5

23 January 2003