Downes v Affinity Health Pty Ltd

[2015] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION:

Downes v Affinity Health Pty Ltd [2015] QDC 197

PARTIES:

DIANE ROSEMARY DOWNES
(plaintiff)

v

AFFINITY HEALTH PTY LTD ABN 53106722347
(defendant)

FILE NO/S:

Maroochydore D305/09

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

12 August 2015

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

18 – 22 November 2013

JUDGE:

Long SC DCJ

ORDER:

Judgment for the defendant

CATCHWORDS:

PERSONAL INJURIES – whether the injury to the plaintiff’s back in the course of her employment as a nurse, was a foreseeable risk in her being placed in any avoidable situation where manual handling of a patient became necessary – whether the plaintiff’s injury was caused by any breach of duty on the part of the defendant, by unreasonably failing to take steps to avoid or minimize the risk of injury to the plaintiff, particularly by any failure  to give the plaintiff any appropriate instruction, training or warning in relation to the risk of injury in the performance of her work – damages assessed

Workplace Health and Safety Act 2011, 28(1)

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Fox v Wood (1981) 148 CLR 438

Hegarty v Queensland Ambulance Service [2008] QCA 366

Hopkins v WorkCover [2004] QCA 155

Turner v South Australia (1982) 56 ALJR 839

Vairy v Wyong Shire Council (2005) 233 CLR 422

Wilkinson v BP Australia Pty Ltd [2008] QSC 171

Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

L Smith for the plaintiff

R Treston QC for the defendant

SOLICITORS:

Hawkes Lawyers for the plaintiff

McInnes Wilson for the defendant

Introduction

1. The plaintiff was born on 29 May 1945 and was aged 62, when the incident which is the subject of these proceedings occurred, in the course of her employment, by the defendant, as a registered nurse at the Selangor Private Hospital in Nambour.  The plaintiff had worked at that hospital since 21 June 1982 and mostly in the surgical ward.  That employment was terminated on 3 November 2008.

1. By claim filed on 30 October 2009, the plaintiff claims damages for negligence in relation to an incident which occurred in the early hours of 25 July 2007.  It is admitted that the defendant required the plaintiff to perform night shift duties on 24 and 25 July 2007 and that this included the supervision of an elderly patient (named “Beryl”), who had undergone a hip replacement operation on 24 July 2009. 

The Claim

1. The incident upon which the plaintiff’s claim is based, is pleaded in terms that “at around 2.30 a.m. on 25 July 2007”:

(a)        she “found Beryl attempting to get out of bed”;

(b)        she “stopped Beryl from getting out of bed”;

(c)        she “sought assistance from a co-worker”;

(d)        she and the co-worker (Nurse Newell) “lifted Beryl back into the centre of the bed”; and

(e)        that as a result she “suffered injury to her lumbar spine”.