Downes v Affinity Health Pty Ltd - [2016] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

Downes v Affinity Health Pty Ltd [2016] QCA 129

PARTIES:

DIANNE ROSEMARY DOWNES
(applicant)
v
AFFINITY HEALTH PTY LIMITED
ABN 53 106 722 347
(respondent)

FILE NO/S:

Appeal No 8963 of 2015
DC No 305 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore – [2015] QDC 197

DELIVERED ON:

13 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2016

JUDGES:

Holmes CJ and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, Holmes CJ and Morrison JA concurring as to the orders made, Philip McMurdo JA dissenting

ORDERS:

1.   The application for leave to appeal is refused.

2.   The Notice of Contention is dismissed.

3.   The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant, a registered nurse at the respondent hospital, aided an elderly post-operative patient back into bed with the help of another nurse – where the applicant contends that she aggravated a spinal condition in the course of intercepting the patient and lifting her back into bed – where the applicant contends that the circumstances of the patient’s age and surgery warranted the patient to be given a bed with full length cot rails – where the applicant contends that if the respondent had provided the patient with a bed with full length cot rails then she would never have been able to climb out of bed, resulting in the applicant having to lift her back into bed and damaging her back – where the applicant contends that the respondent’s failure to provide the patient with a bed with full length cot rails amounts to a breach of duty – where the learned trial judge found that the hospital’s failure to provide full length cot rails was not a breach of duty – whether the respondent breached its duty of care to the applicant by not providing the patient with a bed with full length cot rails

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant contends that the respondent breached its duty of care in respect of its omission to ensure that information specific to the patient was brought to the attention of nursing staff, including the applicant – where the applicant contends that this would have had the effect of creating heightened vigilance in the care of the patient – where the learned trial judge found that the respondent had breached its duty of care in this respect – where the respondent filed a Notice of Contention challenging the learned trial judge’s findings in this respect – whether the respondent breached its duty of care in not making clear to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 129
Decision Date: 13 May 2016

CaseChat Overview and Summary

The case of Downes v Affinity Health Pty Ltd involves a claim by the applicant, a registered nurse, against the respondent, a hospital, for damages resulting from an injury sustained in the course of her employment. The applicant alleges that she aggravated a pre-existing spinal condition while assisting a post-operative patient back into bed, a task which required the intervention of another nurse. The applicant contends that the hospital's failure to provide the patient with a bed equipped with full-length cot rails, considering the patient's age and recent surgery, amounted to a breach of duty, which in turn caused her injury. The respondent argued that there was no breach of duty and, even if there was, it did not cause the applicant's injury.

The primary legal issues before the court were whether the hospital breached its duty of care by not providing the patient with a bed with full length cot rails, and whether this breach, if any, caused the applicant's injury. The court needed to determine if the hospital's failure to equip the patient's bed with full-length cot rails constituted negligence, and if so, whether this negligence was the cause of the applicant's injury. The court also had to consider whether the hospital breached its duty by not ensuring that specific patient information was communicated to nursing staff, potentially necessitating heightened vigilance in patient care.

The court found that the hospital's failure to provide a bed with full-length cot rails did constitute a breach of duty, as it was reasonably foreseeable that such a measure could prevent patients from leaving their beds unaided, thereby reducing the risk of injury to staff during patient transfers. However, the court held that this breach did not cause the applicant's injury. The applicant's evidence regarding the circumstances of the injury was inconsistent and unreliable, leading the court to conclude that the causation link between the hospital's negligence and the applicant's injury was not established. The court rejected the applicant's claims for damages and dismissed the appeal.

The final orders of the court were that the application for leave to appeal was refused, the Notice of Contention was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The Notice of Contention is dismissed.

3. The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Hospital filed a Notice of Contention, seeking to affirm the decision below on another basis, namely that there should have been a finding of no breach of duty in respect of the heightened vigilance ground.The evidence of Ms Downes Ms Downes gave the following account of what happened. She heard the side of the cot rattle, and went into the room;[2] Beryl was between the cot side and the end of the bed, leaning as if she was going to fall out; she was holding onto the cot side and just teetering to fall out of bed;[3] she was sitting, sort of perched on the side of the bed, nearly ready to fall out.[4] Beryl’s walker was at the end of the bed, between the door and the bed.[5] Ms Downes went in and grabbed hold of Beryl with her arms, twisting to support her so she wouldn’t fall any further.[6] She was trying to keep Beryl in the one position, straight without wriggling her hip.[7][2]AB 27 – 28.[3]AB 28.[4]AB 71.[5]AB 30.[6]AB 78, 89-90.[7]AB 29. Ms Wendland put the cot side down and supported Beryl’s legs while Ms Downes was still holding on to Beryl. They put her onto the bed, laid her down so that she was straight, put her leg in the position that it should have been, then lifted her up higher in the bed.[8] There were two lifts involved, the first lift onto the bed and the second lift up to the top of the bed.[9][8]AB 30[9]AB 30. She felt sharp severe back pain when she was twisting to hold Beryl still so that she would not fall, and dull back pain when they lifted and moved her.[10][10]AB 30, 78-79, 88. There were a number of contrary versions given by Ms Downes:(a)she made the following notation made at 4.30 am that morning, “[Beryl] out of bed – WW”;[11](b)on 31 July 2007 she completed a Notification Report, in which she said: “heard the noise of walking frame and ran into the room and [Beryl] was out of bed – using frame. So I picked her up to support her and called for the other nurse”;[12](c)on 6 August 2007 she filled in an application for compensation in which she described the event as “bending to catch a patient before she fell over”;[13](d)on 9 August 2007, in another application for compensation she answered the question, “was there any object or other person involved?”, with “Wheely-walker – [patient] trying to walk with it”;[14] and(e)in a report to a medical centre, when asked how the pain arose, she said: “patient out of bed after total caught her as she fell to the floor”.[15][11]“WW” refers to a wheelie walker.[12]AB 669.[13]AB 682.[14]AB 685.[15]Exhibit 2. In cross-examination Ms Downes was confronted with various statements made by her, where she had given a version of the incident which conflicted with her evidence. Further, the essential differences between her evidence and that of Ms Wendland were put to her. That included being taken to a statement made by her in November 2008, which recorded that she did not feel pain at the time she first took hold of Beryl (when she said she flexed her back and twisted to the right) and that “I didn’t feel any pain in my back until later”. She said that version was not correct, “because I did feel it straight away”.[16] However, in answering questions from the learned trial judge she said that she did not know why she had said the pain was only felt later.[17][16]AB 90-91, 93, 95.[17]AB 93.

Decision

Reasons for decision

Given the conclusions above, there is no need to address the ground concerning damages for past economic loss.Conclusion and orders For the reasons given above the proposed appeal points do not succeed. Therefore leave to appeal should be refused. I would propose the following orders:1.The application for leave to appeal is refused.2.The Notice of Contention is dismissed.3.The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis. PHILIP McMURDO JA: The detailed reasons of Morrison JA make it unnecessary for me to discuss at any length the evidence and the reasons of the primary judge. Morrison JA has concluded that the respondent was negligent by failing to use for this patient, a bed with full length side rails. Had such a bed been used, the incident by which the applicant and another nurse had to take the weight of the patient in putting her back to bed would not have occurred. I agree with that analysis. The respondent owed a duty to take reasonable care to protect its employees, such as the applicant, from a risk that an employee would be injured in having to physically support and manage, in a circumstance of some urgency, the weight of a patient. Clearly there was such a risk and it was reasonably foreseeable. The content of that duty was affected by several considerations as set out in Wyong Shire Council v Shirt.[121] In this case, the magnitude of the risk and the degree of probability of its occurrence were heightened by the circumstances of this patient which were well known to the respondent. The patient had an unusually high tendency to wander from her bed. There was a particular risk to the patient from that course because only a few hours earlier, as an 89 year old woman, she had acquired a new hip. If she did get out of her bed, there would be a need for her to be returned to bed as quickly and safely as possible.[121](1980) 146 CLR 40, 47-48. As Morrison JA has explained, the provision for this patient of a bed with full length side rails was required as a reasonable response to the risk. Such a bed would have provided, at the very least, a substantial impediment to the patient in attempting to leave it. As to a suggested expense, difficulty or inconvenience of providing such a bed, as Morrison JA has explained, such a bed was available in this hospital and could and should have been used for this patient. The respondent was thereby negligent. As Morrison JA has also explained, had this patient been in a bed with full length side rails, she would not have left the bed. The risk of injury to the applicant from having to prevent the patient falling and having to restore her to the bed, could and would have been avoided. The applicant’s case was that the risk did eventuate and that she was injured in the course of preventing a fall and restoring the patient to her bed. But Morrison JA has concluded that this negligence was not a cause of the applicant’s injury, because of the possibility that the injury occurred not in the course of putting the patient back onto the bed, but in the course of then moving her on the bed. His Honour has concluded, in effect, that it was at least as probable that the injury was suffered in that second stage as it was that it was suffered in the first. Because the relevant risk, against which the applicant was to be protected, had passed once the patient was back on the bed, it was not proved that the respondent’s negligence was a cause of the injury. I respectfully disagree.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Downes v Affinity Health Pty Ltd [2016] QCA 129
PARTIES:	DIANNE ROSEMARY DOWNES (applicant) v AFFINITY HEALTH PTY LIMITED ABN 53 106 722 347 (respondent)
FILE NO/S:	Appeal No 8963 of 2015 DC No 305 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Maroochydore – [2015] QDC 197
DELIVERED ON:	13 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2016
JUDGES:	Holmes CJ and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, Holmes CJ and Morrison JA concurring as to the orders made, Philip McMurdo JA dissenting
ORDERS:	1. The application for leave to appeal is refused. 2. The Notice of Contention is dismissed. 3. The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant, a registered nurse at the respondent hospital, aided an elderly post-operative patient back into bed with the help of another nurse – where the applicant contends that she aggravated a spinal condition in the course of intercepting the patient and lifting her back into bed – where the applicant contends that the circumstances of the patient’s age and surgery warranted the patient to be given a bed with full length cot rails – where the applicant contends that if the respondent had provided the patient with a bed with full length cot rails then she would never have been able to climb out of bed, resulting in the applicant having to lift her back into bed and damaging her back – where the applicant contends that the respondent’s failure to provide the patient with a bed with full length cot rails amounts to a breach of duty – where the learned trial judge found that the hospital’s failure to provide full length cot rails was not a breach of duty – whether the respondent breached its duty of care to the applicant by not providing the patient with a bed with full length cot rails TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant contends that the respondent breached its duty of care in respect of its omission to ensure that information specific to the patient was brought to the attention of nursing staff, including the applicant – where the applicant contends that this would have had the effect of creating heightened vigilance in the care of the patient – where the learned trial judge found that the respondent had breached its duty of care in this respect – where the respondent filed a Notice of Contention challenging the learned trial judge’s findings in this respect – whether the respondent breached its duty of care in not making clear to…