Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary

[2024] NSWCA 57

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57

Hearing dates:

16 February 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Before:

Mitchelmore JA at [1];
Stern JA at [114];
Harrison CJ at CL at [115]

Decision:

(1)   Appeal allowed in part.

(2)   Set aside order 1 of the orders made by the District Court on 11 August 2023 and in lieu thereof, order judgment for the plaintiff in the sum of $350,187.60.

(3)   With respect to the costs of the appeal and the costs order made below, the parties are to provide within 14 days of the date of these orders either:

(a)   short minutes of agreed orders, or

(b)   any evidence and written submissions of no more than 5 pages, each party having a further 7 days to reply, with costs to be determined on the papers.

Catchwords:

NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk

NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation

NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but for negligence

NEGLIGENCE — assessment of damages — future economic loss — damages by way of buffer — Civil Liability Act 2002 (NSW), s 13

Legislation Cited:

Civil Liability Act 2002 (NSW)

Workers Compensation Act 1978 (NSW)

Cases Cited:

Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267

Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Miller v Galderisi [2009] NSWCA 353

Penrith City Council v Parks [2004] NSWCA 201

You, Jae Bok v R [2020] NSWCCA 71

Category:

Principal judgment

Parties:

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital (Appellant)
Graham Cleary (Respondent)

Representation:

Counsel:
M Windsor SC / S Kettle (Appellant)
A Sullivan KC / A Campbell (Respondent)

Solicitors:
MinterEllison (Appellant)
Gerard Malouf & Partners (Respondent)

File Number(s):

2023/283765

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2023] NSWDC 263

Date of Decision:

21 July 2023

Before:

Ainslie-Wallace ADCJ

File Number(s):

2021/198827

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 17 July 2020, Graham Cleary underwent spinal surgery at Wollongong Private Hospital, which was operated by the appellant, Health Care Corporation Pty Ltd (HCC). The following day, two registered nurses conveyed Mr Cleary in his hospital bed from the intensive care unit (ICU) to the radiology department (Radiology) for a CT scan. When returning from Radiology to ICU, the bed in which Mr Cleary was being conveyed came into contact with a wall. Following the incident, Mr Cleary reported pain and numbness in his left leg.

On 23 July 2020, Mr Cleary underwent further spinal surgery during which a piece of bone graft material was found sitting under the left L5 nerve and was removed. The movement of the nerve over the bone graft material had permanently damaged the L5 nerve. Mr Cleary continued to experience, pain, numbness and altered sensation in his left leg.

On 21 July 2021, Mr Cleary commenced proceedings in the District Court claiming damages for negligence. The primary judge accepted Mr Cleary’s account of events surrounding the incident, found that HCC was negligent and that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour awarded damages to Mr Cleary in the sum of $583,711.

HCC appealed from the primary judgment on 16 grounds, which can be summarised into four issues. The first issue concerns her Honour’s findings regarding the bed hitting the wall and the effect of the incident on Mr Cleary (grounds 1-7 and 9). The second issue concerns her Honour’s finding that HCC was negligent (grounds 8, 10 and 15). The third issue is in regard to her Honour’s findings on causation (grounds 11-14). The final issue concerns the assessment of damages (grounds 16 and 17).

The Court (Mitchelmore JA, Stern JA, Harrison CJ at CL agreeing), allowing the appeal in part, held:

1. As to Issue 1 (grounds 1-7 and 9), her Honour did not err in accepting Mr Cleary’s account of the incident, the effect of the collision on his body and his sensation of immediate pain and discomfort. [49]. Mr Cleary’s evidence was supported by the evidence of Mr Egidis and to the extent the two accounts differ, her Honour placed more weight on contemporaneous documents: [40], [42], [46]. Ms Gaviria’s evidence was not consistent with the evidence of Mr Egidis or Mr Cleary: [48].

2. As to Issue 2 (grounds 8, 10 and 15), the primary judge did not err in finding that HCC was negligent: [63]. Having regard to the common ground that the bed made contact with the wall, and to her Honour’s acceptance of Mr Cleary’s account of events, it was open to her Honour to find that Mr Egidis had lost control of the bed at the time it hit the wall: [54]. The primary judge did not err in concluding that the risk her Honour identified was neither far-fetched, fanciful nor insignificant: [62].

3. As to Issue 3 (grounds 11-13), her Honour did not err in finding that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour’s finding was supported by Mr Cleary’s evidence regarding the lack of relevant pain and their sudden onset at and following the collision, as well as the expert evidence and the evidence of Dr Pitham: [77].

4. As to Issue 4 (grounds 16 and 17), it was open to her Honour to find that Mr Cleary had capacity to return to part time work, earning $800 per week: [85]. The Court accepted Mr Cleary’s submission that a reduced figure of $5,229 be awarded for past economic loss: [87]. Mr Cleary conceded that her Honour erred in awarding any damages for future economic loss and past domestic assistance: [88], [91]. The primary judge erred in the assessment of future medical expenses as it was not justified on the evidence, and in the assessment of future equipment as no evidence was provided as to whether the claims had been made to the insurer for equipment and the insurer had declined them [105], [109]. Her Honour did not err in her assessment of damages for past and future superannuation and future domestic assistance: [90], [99].

JUDGMENT

1. MITCHELMORE JA: This appeal arises from an incident that occurred at Wollongong Private Hospital (the Hospital) on 18 July 2020. The Hospital was operated by the appellant, Health Care Corporation Pty Ltd (HCC). The respondent, Graham Cleary, was a patient of the Hospital who underwent spinal surgery on 17 July 2020. On 18 July 2020, two registered nurses conveyed Mr Cleary in his hospital bed from the Intensive Care Unit (ICU) to the radiology department (Radiology) for a CT scan. It is common ground that when returning from Radiology to ICU, the bed in which Mr Cleary was being conveyed came into contact with a wall.

2. Mr Cleary reported pain and numbness in his left leg following the incident, which persisted. On 23 July 2020, he underwent further spinal surgery, during which a piece of bone graft material was found sitting under the left L5 nerve. The bone graft material was removed, but the movement of the nerve over the bone graft had permanently damaged the L5 nerve. Mr Cleary continued to experience pain, numbness and altered sensation in his left leg.

3. On 12 July 2021, Mr Cleary commenced proceedings against HCC in the District Court, claiming damages for negligence. On 21 July 2023, Ainslie-Wallace ADCJ upheld Mr Cleary’s claim. Her Honour accepted Mr Cleary’s account of events surrounding the incident, and concluded that HCC was negligent and that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour awarded damages to Mr Cleary in the sum of $583,711.

4. HCC appeals from the primary judge’s decision, advancing 16 grounds of appeal which challenge the primary judge’s factual findings regarding the incident and her Honour’s conclusions on liability and damages. In its written and oral submissions, HCC grouped its grounds by reference to a number of broad topics, which I have further grouped as follows:

1. her Honour’s findings regarding the bed hitting the wall, and the effect of the incident on Mr Cleary (grounds 1-7 and 9);

2. her Honour’s finding that HCC was negligent (grounds 8, 10 and 15);

3. her Honour’s finding that the bed hitting the wall caused Mr Cleary’s symptoms (grounds 11-13); and

4. her Honour’s assessment of damages (grounds 16 and 17).

5. The principles regarding the role of appellate courts in reviewing the factual findings of trial judges are well settled: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 ("Fox v Percy”) and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 ("Lee”). On the application of those principles, and for the reasons outlined below, the primary judge did not err in the findings she made regarding the incident and its aftermath. Nor did her Honour err in finding that HCC was negligent and that its negligence caused Mr Cleary’s symptoms.

6. In relation to damages, HCC did not challenge the amount that the primary judge awarded to Mr Cleary for non-economic loss, but otherwise took issue with the amounts her Honour awarded. The day before the hearing of the appeal, the Court was informed that Mr Cleary accepted that the primary judge had erred in awarding damages for past domestic care and assistance and future economic loss. He also conceded that the amount her Honour awarded for past economic loss needed to be reduced. These concessions narrowed the scope of the dispute regarding damages.

7. The parties remained at issue on Mr Cleary’s reduced claim for past economic loss, together with what the primary judge awarded for past and future superannuation, future domestic assistance, equipment, and a buffer for future medical expenses. I have concluded that her Honour erred in awarding damages for equipment and for awarding a buffer for future medical expenses. I do not consider that her Honour otherwise erred in the manner for which HCC contended.

Mr Cleary’s history of back injury

8. The grounds of appeal do not involve any challenge to the primary judge’s summary of Mr Cleary’s medical history before his admission to the Hospital on 17 July 2020. For the purposes of the appeal it suffices to note the following aspects of that history before turning to the events of 17 and 18 July 2020.

9. At the time of the incident the subject of these proceedings, Mr Cleary was 50 years old and had worked as a truck driver, both for himself and for employers: at [7]. In 2015, in the course of his employment driving refrigerated trucks for a fish market, when he was lifting a heavy crate of fish, Mr Cleary sustained a back injury at L4/L5. He took two months off work before returning to work on a full time basis: at [8].

10. On 9 August 2017, while driving for a different employer, Mr Cleary again injured his back, experiencing pain in his back and right leg. He was admitted to hospital where he remained for a week before being discharged with a plan for physiotherapy and analgesic medication: at [10]. In October 2017, Mr Cleary underwent an MRI which revealed some desiccation of his L4/5 disc but no compromise of the nerve, and he was treated conservatively with a steroid injection into the site: at [11]. Mr Cleary subsequently experienced sciatic-type pain on his right side, and a further MRI revealed a small to moderate disc bulge at L4/L5: at [11]. In February 2018, with Mr Cleary continuing to experience pain in his back and right leg, nerve conduction studies showed a “mild active denervation in bilateral L4/5 supplied muscles”. In March 2018, he was described as having a shallow disc bulge with lumbar nerve root compression: at [12].

11. On 10 May 2018, Mr Cleary underwent a microdiscectomy that reduced his pain by 50% and he subsequently returned to work on a restricted basis: at [13]. Following a drive from his home in Wollongong to Canberra, he experienced an exacerbation of his back and leg symptoms and tests in December 2018 suggested a recurrent disc herniation at L4/5: at [14]-[15]. On 10 January 2019, Mr Cleary underwent a second microdiscectomy, which did not relieve his symptoms of right-sided leg pain and numbness. In May 2019, further tests revealed that Mr Cleary had a disc bulge at L4/5 with fibrosis surrounding the L5 nerve root: at [16].

12. On 12 May 2020, Mr Cleary underwent an L4/5 disc fusion, which was performed by Dr Thomas Pitham: at [17]. The spinal fusion required Dr Pitham to insert bone grafts into the disc and on the outer “gutters” of the vertebra, which harden to bone over some months and provide structure and stability for the vertebra: at [33]. Mr Cleary gave evidence that the surgery immediately relieved his symptoms, but towards the end of May he reported experiencing pain and numbness running down his back, through his left buttock and down his left leg, stopping at the knee. A CT scan revealed a piece of broken bone (an osteophyte) that was sitting to the left of the L4 vertebra: at [17]-[18].

13. Dr Pitham said that the bone, which was most likely broken off when he was fixing the two vertebra during the fusion, was causing inflammation around the nerve, causing left sided symptoms: at [19]. When a course of steroid injections did not alleviate Mr Cleary’s symptoms, Dr Pitham recommended a further operation to decompress the nerve at L4/5 and revise the fusion: at [19]. On 17 July 2020, Mr Cleary was admitted to the Hospital for the recommended surgery.

14. During the operation, Dr Pitham slid back the cage inserted during the fusion operation to decompress the L4 nerve along its length, following which he repositioned the cage: at [20]. Mr Cleary stated that upon waking in recovery, he had no left sided pain or numbness: [21].

The incident at the Hospital and its impact on Mr Cleary (grounds 1 to 7 and 9)

15. On the afternoon of 18 July 2020, Mr Cleary was taken from ICU to Radiology for a CT scan. He was wheeled in his bed by Denis Egidis, a registered nurse, who was located at the head of the bed, and Clara Gaviria, a registered nurse and the Hospital Operations Manager, who was located at the foot of the bed. As I noted above, the parties agree that on the way back from the CT scan, the bed in which Mr Cleary was lying made contact with a section of wall. Precisely what occurred, and its impact on Mr Cleary, was contested in the court below and remains in issue on the appeal.

16. The primary judge accepted Mr Cleary’s account of the incident, stating at [44]:

“While the contact between the bed and the wall may have appeared to Mr Egidis to have been minor, there is no reason not to accept the plaintiff’s account of the incident and of the effect of the collision on his body and his sensation of immediate pain and discomfort. His evidence is not improbable and it was not suggested that it should be rejected.”

17. Paragraph 44 of her Honour’s reasons is central to HCC’s appeal. HCC alleged that her Honour erred in:

1. finding that there was no reason not to accept Mr Cleary’s account of the incident and the effect of the collision on his body and his sensation of immediate pain and discomfort (ground 1);

2. finding that Mr Cleary’s evidence was not improbable and it was not suggested that it should be rejected (ground 2);

3. relying on Mr Cleary’s evidence as to the effect of the bed striking the wall at walking pace (ground 3);

4. accepting Mr Cleary’s description of the effect of the impact of the wall on him and his complaints of immediate pain following it (ground 4);

5. finding that it was undisputed that Mr Cleary made immediate complaints of pain at the time the bed struck the wall (ground 5);

6. failing to consider or properly consider the evidence of Mr Egidis and Ms Gaviria (ground 6);

7. finding that the effect of the impact was not small or minor in its effect on Mr Cleary (ground 7); and

8. finding that Ms Gaviria was adamant that the bed did not collide with the wall on the return journey from the CT scan (ground 9).

18. In order to evaluate HCC’s challenge to her Honour’s acceptance of Mr Cleary’s account of the incident, it is necessary to examine the evidence of Mr Cleary and HCC’s various challenges to it, along with the evidence of Mr Egidis and Ms Gaviria. In undertaking that exercise I am mindful of the well-settled principles regarding appellate review of factual findings developed in cases such as Fox v Percy at [28]-[29] and Lee at [55].

19. By way of background, ICU and Radiology are located on different floors of the Hospital. A plan of the floor of the Hospital on which ICU is located was in evidence before the primary judge. It showed that the route from ICU to the service lifts involved passing through a set of doors to ICU, then along a corridor of some 20.2m, before passing through a second set of doors and making a right hand turn to reach the service lifts, entry to which involved a further right hand turn. Assuming the service lifts were used in both directions (which Mr Cleary did not accept), the reverse route from the lifts to ICU involved a series of left hand turns: out of the service lifts, and back through one set of doors into the long corridor, before reaching the doors to ICU at the other end of the corridor.

20. In order to open the doors to ICU upon return to that department, an employee needed to swipe an access card against a small black box that was located on the left wall near the doors. Once activated, the doors opened inwards into ICU, with magnets located at the top of the door and on the facing walls to hold the doors open. As the primary judge observed, on 18 July 2020, as had become apparent to Ms Gaviria and Mr Egidis on the way to Radiology from ICU, one of the doors was not held open by the magnet on the wall that was designed for that purpose, and thus it needed to be held open manually to allow the bed through: at [38].

Mr Cleary’s evidence

21. Mr Cleary gave evidence in chief that on the journey to and from Radiology he was “sitting up a little bit in the bed”; the head of the bed was angled at about 45 degrees, to help relieve the pressure on his back. When asked if anything happened on the way from ICU to Radiology, Mr Cleary said:

“Yes, We’d come to – we’d come around the corner and there was a door that opens automatically – I think it is. But on the door, the magnets that hold it open was playing up and girl said to me, ‘I’m just going to hold the door while we push the bed through.’ So we went through, okay. [Ms Gaviria] held the door, he pushed through. Then she took control of the bed again and took me down to the scan.”

22. He estimated that when lying in the bed, there was a distance of about 50 cm between his feet and the end of the bed. When asked if anything occurred on the way back from Radiology, Mr Cleary gave the following evidence:

“Yes, we had an accident on the way – on the way back. We come around the same corner to where the door was jammed – that was playing up. As we come around the corner, the girl in the front, she let go of the bed. She said, ‘I’ve got to go and open the door up, you know, the sticky magnets?’ Yeah. So she – she let go of the bed, the bed went straight ahead into – in – and slapped into the wall while she was doing that. And I was sitting in the bed, and I seen it coming, so I grabbed hold of the rails and I went, ‘Stop. Stop. Stop. Stop. Stop,’ the bed didn’t stop.”

23. Mr Cleary gave evidence that when the bed hit the wall, they had turned the corner to which he referred in a clockwise direction, and that Ms Gaviria had crossed in front of the bed, from the left to the right, in order to open the door. HCC placed some emphasis on this evidence having regard to the route from the service lifts, which involved a series of left turns (anti-clockwise), and to the location of the box to be swiped, which was located on the left hand side of the doors.

23. Mr Cleary’s evidence was that at the time the bed hit the wall, it had not slowed from the pace it had been moving at, which he described as “just been pushed at the regular pace”. He said that he thought he felt the bed speed up but he was not sure if that was because he grabbed on and braced himself or because the movement of the bed actually sped up. Mr Cleary was then asked what happened to his body when the bed collided with the wall, to which he replied, in a passage forming part of the extract in the primary judge’s reasons at [35]:

“I slid down the bed, I tried to brace myself, I seen it coming, and we hit the wall, bang. I slid down the bed and my feet hit the end of the bed and I tried to brace myself and my legs as well to take an impact, but my legs are weak, just, I wasn’t even 14 hours out of surgery. So, a big bang, I whiplashed my back and a big crack, I felt a big crack in the base of me spine, and I fell back on the bed and I felt like a – a G force shudder shock all the way up my body.”

25. Mr Cleary confirmed for the record that when he had said the word “whiplash” he had indicated a forward tilt with his hand, demonstrating his forward movement from the waist up on impact, after which he fell back on the bed. Mr Cleary felt a shudder up his body and pain in his back, and his legs were sore. He gave evidence that “within an hour” of his return to ICU he started to get very bad pain down his left leg, then from his knee down, and his foot started going red: he described it as “a lot of pain”. When asked to further detail his leg symptoms, Mr Cleary said, in a passage the primary judge extracted at [36]:

“Q. And can you describe the symptoms down your leg? Whereabouts in your leg were --

A. They? Uh, it had come from my spine into my glute. There was nerve pain. I felt it on my right side. So, I don’t understand where it was coming from. It went all the way down the outside of my leg, through my – all the way to my foot, crossed the top of my foot and my toes, and I’d get some pain coming on the bottom of my right foot as well, at the same time.

Q. Bottom of --

A. Left foot, sorry, not right, my left foot.

Q. Which side of the bottom of the foot did you --

A. On the foot – on the right-hand side of my – of my left foot.

Q. On – on the instep?

A. Inside instep, yeah.

Q. Had you ever felt those sorts of symptoms in your left leg before?

A. Never.”

26. The focus of HCC’s attack on Mr Cleary’s evidence was how the incident unfolded and its aftermath. HCC submitted that Mr Cleary’s evidence on matters of detail, including as to the location of the incident and where Ms Gaviria was positioned, his route back to ICU, the direction of the bed’s impact with the wall, and the degree of impact, rendered his version of what happened so improbable that the primary judge should have rejected it.

27. In considering the matters of detail in Mr Cleary’s evidence on which HCC relied, it is important to bear in mind a number of matters. First, on 17 July 2020, the day before the incident, Mr Cleary had undergone back surgery. As he said in his evidence when taken to the detail of progress notes from the early hours of 18 July 2020 and asked if he could recall what the notes recorded, Mr Cleary was on heavy medication at the time of the incident, which occurred three years before he gave evidence in the District Court.

28. Second, in the context of Mr Cleary’s admission to the Hospital for surgery, the journey in the course of which the incident occurred was routine: he was being wheeled, in his bed, from ICU to Radiology to undergo a postoperative CT scan. Mr Cleary’s recollection of what happened in the lead up to the incident, in terms of the route, the movements of others and the ultimate location of the incident, which I will address in more detail below, reflected the reality that the journey was not especially memorable up until the point of contact between his bed and the wall.

29. Third, and relatedly, Mr Cleary did not profess any particular familiarity with the layout of the Hospital. For example, and noting that HCC relied on his evidence that he turned right out of the lifts when returning to ICU, Mr Cleary gave this evidence:

“Q. So, you went up an elevator?

A. Yeah.

Q. And then, you came out on the level of the ICU?

A. Yeah.

Q. Turned right?

A. I think so, yes. Yes.

Q. And then right again?

A. I think so, yes. No, I don’t know if it’s right or left. Because you’re coming out – because out of – because if you come out of the service elevators, you turn right, I think it’s right and right. I don’t know the hospital completely, so I’m not an expert on everything in the hospital.”

(Emphasis added.)

30. Shortly thereafter, Mr Cleary also said that he did not know the hospital plans “backwards or forwards”. Similarly, when asked how far he travelled along the corridor before coming to the ICU doors, Mr Cleary gave this evidence:

“I couldn’t tell you. I really couldn’t. I don’t know the length of the hospital or the length of the corridors or anything. I couldn’t really tell you. I’m lying in a bed, you know?”

31. Apart from relying on his evidence that he turned right out of the lifts which, as I have highlighted above, was equivocal, HCC relied on evidence that Mr Cleary gave after being shown two videos, the first of which depicted the route from ICU to Radiology via the service lifts, and the second the route back from those same lifts. Mr Cleary was shown these videos in the course of cross-examination. Before he was cross-examined on the videos, her Honour granted an adjournment to give Mr Cleary an opportunity to review them with his legal representatives.

32. HCC emphasised that after he was shown the two videos, Mr Cleary was initially hesitant about whether the corridor shown in the video was the one where the bed impacted with the wall, before denying that it was the same corridor and denying that the incident occurred at the set of doors to the ICU. HCC also highlighted Mr Cleary’s evidence that he had travelled back from Radiology via the public lifts, and not the service lifts, which conflicted with Mr Egidis’ evidence that he would not have used the public lifts.

33. The particular aspects of Mr Cleary’s evidence on which HCC relied need to be viewed in the context of his evidence as a whole, having regard to the features I have already identified. By way of example, shortly before one of the passages of evidence on which HCC relied to support its submission that Mr Cleary “did not know that the corridor depicted in the video was the one where he collided with the wall” Mr Cleary gave this evidence:

“Q. Mr Cleary, is that the corridor that you were taken down to go from the ICU to the lifts?

A. It may have been, I’m – when I’m leaving, I‘m not fully aware of where I’m going or what I’m doing. I’m not concentrating on what I’m doing because I’m in a lot of pain, I’m lying back at a 45 degree angle, so it may have been.

Q. You don’t know if that’s the corridor, or not, that you went down?

A. Not 100%, no I’m not 100% sure, because I – as I said, I’m on very heavy drugs, I’m dazed, and I’m lying back. I’m not watching everywhere I’m going, I’m sitting back, I’m sore, I’m moving around, so yeah.

Q. Is it fair to say that you weren’t aware of your surroundings? Is that correct?

A. Not 100%, no.

Q. And you don’t have a good recollection of going from the ICU down to the CT scan. Is that correct?

A. I have a recollection of some things that happened, a good recollection, because of what had been spoken to me by the nurse who was steering the bed, so I have a recollection of some of that stuff, but I did not sit there – did not sit there and say, ‘We took a right turn, we took a left turn, we took a second turn, we went there, we went there, we’re on this level, we’re on that level,’ I didn’t take a video of it.”

34. Mr Cleary’s evidence in this regard was plausible. As he said in the context of the second passage on which HCC relied as evidence that he did not know whether the corridor on the video was the one in which his bed impacted with the wall:

“I’m more worried about being comfortable and in pain than I am worrying about where the – what I’m actually – where I’m actually in. I’m trusting the nurse and the person steering the bed to do the right thing.”

35. It is the case that Mr Cleary’s recollection was that the corridor was darker than the one depicted on the video, and that the incident occurred a distance of some five metres from any doors in the corridor. However, it is apparent from what I have already referred to that Mr Cleary was not unequivocal about this. In his evidence about the distance between the doors and the incident, he accepted that five metres was his “best guess”. As he reiterated shortly thereafter in the following exchange:

“Q. But you haven’t been able to identify by reference to a plan or otherwise where that [i.e. the accident] occurred. Is that correct?

A. I cannot recall on a plan because I did not take notice of exactly where we were going because I’m not – I’m not in the state of mind to recall every turn we took, every lift we took, or everything that had happened at the time, and where we went. I recall what happened.

Q. I want to suggest to you that the incident, the bump on the wall, was at slow speed?

A. No. I don’t agree.

Q. It was less than walking pace, wasn’t it?

A. I don’t agree.

Q. At the time, I suggest to you that the bed was slowing down?

A. No, I don’t agree.”

(Emphasis added.)

36. In light of both his condition at the time and his situation, lying at a 45 degree angle in a moving bed, it was not surprising that Mr Cleary did not recall the matters of detail on which HCC placed such emphasis. It certainly did not follow from the absence of a precise recollection of such matters that the primary judge could not have accepted his evidence about what happened when the bed impacted with the wall.

37. HCC also submitted that Mr Cleary’s account of how the bed came into contact with the wall was implausible, relying on the following answer:

“Q. Five metres away from the door, you hit the side of the wall. Is that right?

A. No, I didn’t hit the side of the wall. The bed went straight into a wall. The end of the bed went straight into a wall. Not the side of the bed, not the left side, not the right side, the end of the bed.”

38. HCC relied on the certainty with which Mr Cleary expressed this answer, and its implausibility, as necessarily calling his account into question. However, the question to which Mr Cleary gave this answer is important. What was put to Mr Cleary was that he hit “the side of the wall”. Mr Cleary’s response emphasised that he did not hit the side of the wall, and that there was direct contact between the end of the bed and the wall, which was consistent with the evidence of Mr Egidis. There is force in this respect in Mr Cleary’s submission that it did not follow from the language that Mr Cleary used in this answer, or his use of the phrase “straight ahead” in another part of the evidence , that the bed went into the wall in a direction that was perpendicular to what had previously been the direction of travel. As he submitted, the phrase could equally be referring to the bed continuing to travel towards the wall, as opposed to the precise angle of impact. I do not accept HCC’s submission, made orally and in its written reply, that this evidence can only be read in the manner for which it contended.

39. It also bears remembering, when considering this evidence and other evidence of Mr Cleary on which HCC relied, such as where Ms Gaviria was positioned in the lead up to the point of impact (see [23] above), that Mr Cleary was lying in a bed at the time. Considered in that context, and bearing in mind the medication he was then taking, Mr Cleary’s evidence was not improbable. The matters on which HCC relied did not, in my view, relevantly impact on the evidence Mr Cleary gave about what happened when the bed impacted with the wall and, more importantly, what happened to him on impact.

40. HCC’s challenge to the trial judge’s finding that the impact of the bed was not minor or small is answered by Mr Cleary’s evidence about his physical response to the impact. As he submitted, on his evidence the impact of the bed coming into contact with the wall was sufficient, as he described it, for him to slide down the bed, with his feet hitting the end of bed, and for him to “whiplash” forward and fall back on to the bed. As the primary judge found at [56], he also experienced immediate pain in his back, on his evidence and as supported by:

1. the evidence of Mr Egidis, who said that he saw Mr Cleary “in certain discomfort” (albeit not more than usual compared to other discomforts he had seen), and that after returning to ICU Mr Cleary reported more numbness and “voiced himself more discomfort” (although that did not appear to be so in Mr Egidis’ judgement) ;

2. the notes Mr Egidis made in the hospital records on his shift that day. In cross-examination, Mr Egidis explained the abbreviated terms in the notes he made, the effect of which was that he recorded Mr Cleary had reported that he had numbness to his left leg more than in the morning, and that after the CT scan his numbness was worse; and

3. other medical records, including notes of Dr Pitham dated 18 July 2020 which recorded increased pain since the transfer for a CT, a nursing note made in ICU at 5.13am on 19 July 2020 recording pain and numbness down the left leg to the foot; and a note taken on ICU rounds at 10am on 19 July 2020 which recorded that Mr Cleary had complained of severe left leg pain “since yesterday evening post CT scan”.

41. HCC contended that her Honour erred at [56] in describing that it was undisputed that Mr Cleary made “immediate” complaints of pain. However, in addition to Mr Cleary’s own evidence, Mr Egidis witnessed Mr Cleary have an immediate reaction of discomfort to the incident, which was consistent with Mr Cleary’s account of what happened, to which I have referred above. Mr Egidis also recorded Mr Cleary reporting increased levels of numbness following the CT scan, as was recorded in the other medical records to which I have referred.

42. In so far as HCC sought to challenge the primary judge’s observation in [44], that it was not suggested that his evidence should be rejected, Mr Cleary was not cross-examined specifically on his evidence about the physical impact upon him when the bed hit the wall, including his experience of pain on impact. Further, as Mr Cleary pointed out in his written submissions, Mr Egidis did not deny Mr Cleary’s version of events. Rather, his evidence was that he could not recall aspects of that version as put to him in cross-examination, in circumstances where, as Senior Counsel for Mr Cleary submitted orally, it was apparent from his evidence that Mr Egidis understood the difference between a lack of recollection and a denial. As for Ms Gaviria, the only other person present at the time, consistently with her not having witnessed the impact she was not in a position to give evidence that was contrary to that of Mr Cleary.

43. What was put to Mr Cleary in cross-examination was Mr Egidis’ account that the bed was slowing down from a walking pace before the impact with the wall, with HCC ultimately submitting that the appropriate finding to be made regarding contact between the bed and the wall was that it occurred at a slow speed and was minor. It was also put to Mr Cleary that he had reported pain in his left leg on the morning of 18 July 2020, before the incident occurred.

44. Although Mr Cleary did not accept in cross-examination that the bed was slowing down when it hit the wall, there was otherwise a degree of consistency between his evidence and that of Mr Egidis about the speed at which the bed was pushed. As I noted above, Mr Cleary’s evidence was that before the bed hit the wall, the pace at which it was being pushed was “regular” (see [24] above). Mr Egidis’ evidence was not dissimilar, describing the bed as moving at a walking pace. Although Mr Egidis maintained that the bed was slowing down, it was the contact with the wall that brought the bed to a stop, his evidence being: “[t]he bed stopped fully with contact.” On this aspect of the events, the primary judge ultimately relied on the evidence of both Mr Cleary and Mr Egidis, finding at [47] that “the bed was moving at a walking pace or perhaps slowing a little when it hit the wall” (emphasis added). In the face of that finding, HCC’s submission that her Honour rejected Mr Egidis’ evidence that the bed was slowing cannot be sustained.

The evidence of Mr Egidis and Ms Gaviria

45. In support of its complaint that the primary judge should not have rejected parts of the evidence of Mr Egidis, HCC first relied on views that her Honour expressed during closing submissions which find no reflection in her Honour’s reasons for judgment. In You, Jae Bok v R [2020] NSWCCA 71 at [19], Basten JA (with whose reasons on this issue Rothman and Cavanagh JJ agreed) observed that “judicial error is not to be imputed by importing something said in the course of an exchange with counsel into the written judgment”.

46. HCC also relied on what the primary judge said about Mr Egidis’ evidence in [43], namely, that it was “not clear why the witness felt it necessary to compare the discomfort that [he] saw in the plaintiff with that he had seen in other patients” as indicating that her Honour had unfairly characterised his evidence. However, the balance of her Honour’s reasons in that paragraph indicate that she placed more weight on what the contemporaneous medical records revealed of Mr Cleary’s pain levels around the time of the incident. That her Honour took that course was consistent with what Bell P said of contemporaneous documents in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25] (Bathurst CJ and Leeming JA agreeing), namely, that they “generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony”.

47. In relation to Ms Gaviria’s evidence, Ms Gaviria accepted that she needed to let go of the bed in order to swipe the black security box and open the door. Ms Gaviria also accepted that the bed had not stopped moving when she went to open the door; and that she could not see what was happening behind her. Her Honour did describe Ms Gaviria as “adamant” in her evidence that the bed did not collide with the wall on the return journey from the CT scan: at [39]. This observation was the subject of ground 9 of the appeal, with HCC submitting that the primary judge erred in so describing her evidence, with Senior Counsel submitting orally that “adamant” should be read pejoratively to mean “intransigent”.

48. However, her Honour’s use of “adamant” was not pejorative. So much is apparent from the conclusion of the same paragraph, in which her Honour stated that “Ms Gaviria was clearly giving her evidence in accordance with her recollection”. The issue was that Ms Gaviria’s evidence, that the bed did not collide with a wall on the return journey from Radiology, was not consistent with the evidence of Mr Egidis or Mr Cleary. Her Honour did not err in preferring their respective accounts and finding that the bed impacted with the wall on the return journey, being a finding that HCC did not challenge on the appeal.

Conclusion on grounds 1-7 and 9

49. The primary judge concluded at [44] that although the contact between the bed and the wall may have appeared minor to Mr Egidis, there was no reason not to accept Mr Cleary’s account of the incident, the effect of the collision on his body and his sensation of immediate pain and discomfort. True it is, as HCC submitted, that there was no expert evidence about the force or effect of the contact between the two objects, the bed and the wall. However, one does not need expert evidence about the force of the impact to describe what occurred; the primary judge had evidence of the force of the impact from Mr Cleary, whose evidence she accepted. His evidence was not glaringly improbable or contrary to compelling inferences: Fox v Percy at [29]; Lee at [55]. It follows that I do not accept that her Honour erred in the respects alleged in grounds 1 to 7 and ground 9.

Negligence (grounds 8, 10 and 15)

50. Her Honour identified the risk of harm as follows at [79]:

“Here the risk of harm is that in moving patients in beds within a hospital requires care to be taken to avoid the bed coming into contact with fixed objects where the effect of the collision is likely to cause harm.”

51. Referring to s 5B(1) of the Civil Liability Act 2002 (NSW), the primary judge found that Mr Cleary, who was being moved from ICU to another area of the hospital mere hours after significant back surgery and in receipt of significant analgesia, was vulnerable; and that it was “not far-fetched or fanciful to conclude that a person in his position would be at risk of harm if the bed collided with the wall”: at [81]. Her Honour also found that although the particular injury he suffered was unusual, it was “quite foreseeable” that a patient having recently had back surgery would be significantly injured if the bed collided with the wall: at [82].

52. Referring next to s 5B(2) of the Civil Liability Act, her Honour stated:

“[84] The plaintiff had the benefit of an expert safety report, the contents of which were unchallenged. That expert said that it was the obligation of both members of staff moving the plaintiff in a bed to maintain a safe environment during the journey. Both staff members understood from the outward journey to the CT scan that the door magnet was faulty and one side of the door needed to be held open to allow the bed to pass through the door way. On the return journey, Ms Gaviria instead of keeping one hand on the foot of the bed and the other to swipe the access card let go of the bed while it was still in motion. Nurse Egidis who was at the head of the bed and responsible for its movement did not bring the bed to a complete halt nor was there any communication between them as to Ms Gaviria letting go of the end of the bed and as a consequence Nurse Egidis lost control of the bed which collided with the wall. No attempt was made to prop open the door so that the bed could be safely manoeuvred through the door with both staff members having control of the bed nor was the bed brought to a complete stop before Ms Gaviria let go of her end of the bed.

[85] Given the probability of harm to a physically vulnerable patient being taken from the ICU to another place in the hospital and the likely seriousness of that harm if it eventuated, the burden of taking precautions against the staff not being properly in control of the bed’s movement were minor.

[86] I am satisfied on the balance of probabilities that the defendant was negligent.”

53. Her Honour’s conclusions on negligence were the subject of the grounds of appeal numbered 8, 10 and 15. Factually, HCC contended that the evidence did not support a finding that Mr Egidis lost control of the bed on the return from ICU (ground 8). Rather, the bed had slowed so as to allow Ms Gaviria to scan her swipe card, while Mr Egidis kept his hands on the bed. HCC next submitted that in concluding that it was negligent, her Honour erroneously focused on the point at which the bed was being manoeuvred through the doors to ICU, when the evidence of Mr Cleary and Mr Egidis was that the incident occurred before those doors were opened, and wrongly relied on the expert report of Ms Gilbert RN when the opinions she expressed rested on incorrect assumptions, including as to the point at which the incident occurred (ground 10). HCC also contended that her Honour erred in finding that it was quite foreseeable that a patient having recently had back surgery would be significantly injured through the bed colliding with the wall (ground 15).

54. Starting with the factual contention, it was not in dispute that on 18 July 2020, the magnet on one of the doors to ICU was not functioning as it should, meaning that after the black box was swiped and the doors opened, one of the doors had to be held open manually so as to enable the bed to pass through. It was undoubtedly the case, on the evidence of Mr Cleary and Mr Egidis, that the incident occurred before the doors had opened. However, Ms Gaviria had let go of the bed in order to approach and swipe the access box, leaving Mr Egidis to handle the bed. Having regard to the common ground that the bed had made contact with the wall, and the primary judge’s acceptance of Mr Cleary’s account of the incident, it was well open to find that Mr Egidis had lost control of the bed at the time it hit the wall.

55. Moving next to the report of Ms Gilbert, in oral submissions Senior Counsel for HCC focused on pages 30 and 31 of her report, in which Ms Gilbert detailed her conclusions regarding what should have occurred to ensure an appropriate patient transfer. Senior Counsel submitted that the evidence of Ms Gilbert was based on an incorrect assumption that at the time of the incident, Mr Egidis and Ms Gaviria were navigating through the doors. This led, in his submission, to Ms Gilbert’s evidence about what should have occurred having marginal, if any, significance, even accepting that her report was not challenged and she was not cross-examined.

56. I do not accept these submissions. Earlier in her report, Ms Gilbert set out the account of Mr Cleary which included, consistently with his evidence, that Ms Gaviria, being “the lady steering the bed”, let go of the bed to go and open the doors, and it was at that point that the bed steered into the wall with which it collided. That Ms Gilbert proceeded on the basis of that account is reflected in her response to the first question she was asked, namely, whether Mr Cleary’s transfer to and from his CT scan was done appropriately and if not, why not. In the course of responding to that question, Ms Gilbert stated:

“Nurse Denis and the female member of staff encountered the faulty door, which would not stay open with the magnetic mechanism, on the way to radiology. Therefore, they both knew the door would be a hazard on the way back. They failed to appropriately and effectively communicate how they would navigate the bed through the door in a safe manner. According to Mr Cleary’s recollection of the event, the female staff member let go of the bed to open the door. This staff member failed to ask for help from RN Denis to either take control of the bed or open the door. RN Denis failed to assist the staff member, who was not a wardsmen, to control the bed through the door, and failed to assist by not assisting with opening the door.”

(Emphasis added.)

57. Ms Gilbert’s express reference to Mr Cleary’s account about when the incident occurred weakened the force of HCC’s emphasis on the next part of the report, in which Ms Gilbert referred to the need for the two staff members to identify as a hazard the fact that the doors would not stay open, and to communicate in relation to it. HCC also emphasised that the controls Ms Gilbert considered should have been in place to minimise the risk included that the nurse should have secured the door open while the female staff member steered the bed through the doorway, which “would have ensured that the bed was always controlled by one staff member and would not have been able to collide with the wall”. In circumstances where Ms Gilbert had only recently reiterated her instructions about what happened, the parts of the report on which HCC relied are properly understood as addressing the entirety of the process of approaching, opening, and passing through doors which, to the knowledge of the two staff members, had a faulty magnet mechanism which meant it needed to be held open manually.

58. The primary judge’s findings on negligence should also be so construed. As I have noted above, her Honour found that on the account of Mr Cleary and Mr Egidis, the incident occurred before the bed had reached the doors of the ICU. HCC’s submission that her Honour’s finding of negligence rested on the wrong point of the journey could only be made out on the basis of emphasising what her Honour said in [84], about no attempt being made to prop open the door so as to manoeuvre the bed through it, at the expense of the rest of the paragraph. So to read the paragraph in this way would also be at odds with the balance of her Honour’s findings about the incident.

59. Turning then to her Honour’s finding on foreseeability, HCC submitted that it was not foreseeable that a patient who had had recent back surgery would be significantly injured through the bed colliding with the wall. It submitted that there was no distinction drawn between different types of collisions, no expert evidence as to the forces required for Mr Cleary to be “significantly injured”, no attempt to distinguish between “back surgery” and the surgery that Mr Cleary had undergone on 17 July 2020, and the fact that none of the experts were aware of an injury of this nature occurring in similar circumstances.

60. The risk that her Honour found, to which I have referred above, was formulated in broad terms. As Mr Cleary noted in his written submissions, HCC did not challenge that formulation. In Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 ("Harrower”) at [21], Payne JA and Simpson AJA summarised the test for foreseeability at common law and pursuant to s 5B(1)(a) of the Civil Liability Act as follows:

“At common law, the authoritative test for foreseeability of risk was identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47: a risk is foreseeable if it is not far-fetched or fanciful. That test is to be applied when determining foreseeability under s 5B(1)(a): State of New South Wales v Mikhael [2012] NSWCA 338 at [76] per Beazley JA. The test is undemanding and largely unconnected from probabilities: Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641E per Glass JA, South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [85] per Basten JA (with whom Macfarlan and Simpson JJA agreed).”

61. In relation to the inquiry in s 5B(1)(b) of the Civil Liability Act, Payne JA and Simpson AJA in Harrower said the following at [24]:

“The meaning of ‘not insignificant’ is only slightly more onerous than the common law test that the risk of harm be real and not far-fetched or fanciful, although it is not satisfied merely by the fact that an injury occurred: Russell v Carpenter [2022] NSWCA 252 at [20] per Kirk JA (with whom Meagher and Gleeson JJA agreed). The analysis of a risk for the purposes of s 5B(1)(b) is at a lower level of generality than the analysis of foreseeability under s 5B(1)(a), and depends upon a variety of factors including obviousness, likelihood of occurrence and seriousness of consequences: Gazis at [89] per Basten JA (with whom Macfarlan and Simpson JJA agreed).”

62. The primary judge did not err in concluding that the risk she identified, of likely harm resulting from a collision between a hospital bed in which a patient was lying and a fixed object such as a wall, was neither far-fetched nor fanciful. The risk was also not insignificant, having regard to the obviousness of the risk and the seriousness of the consequences. As to the question of whether, within the meaning of s 5B(1)(c) of the Civil Liability Act, “in the circumstances, a reasonable person in the person’s position would have taken those precautions”, Senior Counsel for Mr Cleary pointed out that both Ms Gaviria and Mr Egidis gave evidence that it was necessary to stop the bed before swiping the black box. When considering the ease with which a precaution could have been put in place for the purposes of the Civil Liability Act, there was, as Senior Counsel submitted, nothing easier than to have stopped the bed before Ms Gaviria let go of the bed to swipe the black box.

63. HCC has not established that her Honour erred in finding that the risk of harm was foreseeable for the purposes of s 5B of the Civil Liability Act. I would dismiss grounds 8, 10 and 15 of the notice of appeal.

Causation (grounds 11 to 13)

64. On 23 July 2020, Mr Cleary underwent further surgery, which was performed by Dr Pitham, during which Dr Pitham located a piece of bone graft material sitting under the left L5 nerve as it left the foramen and moved over the L5 pedicle: at [24]. As I noted above, Dr Pitham removed the bone graft fragment but it had permanently damaged the L5 nerve. Nerve conduction studies in August 2020 showed evidence of severe and highly active denervation of the L4/5 supplied muscles: at [26].

65. Expert evidence was given in the trial by Professor Noel Dan on behalf of Mr Cleary, and Professor Marcus Stoodley on behalf of HCC. Dr Pitham also gave evidence. The primary judge noted that both of the professors and Dr Pitham agreed that the nerve impingement and damage to the L5 nerve was caused by the nerve being stretched over the bone graft fragment: at [29]. They also generally agreed that the bone graft fragment most probably came from the L4 disc and was ejected into the space under the L5 nerve: at [30]. The area of dispute between the parties was as to how and when the bone fragment was expelled from the vertebral disc space and came to rest under the L5 nerve: at [31]. Mr Cleary submitted that the force of the impact of the bed and the wall on return from the CT scan caused the graft fragment to be expelled from the vertebra to under the L5 nerve, while HCC submitted that the force of the collision would not have caused the bone graft material to be expelled from the site of the disc fusion.

66. The primary judge ultimately concluded that the bone graft fragment was most probably dislodged and came to rest under the L5 nerve root at the time the bed impacted with the wall and that was when the nerve that was pulled over the pedicle was significantly and irreparably damaged by the fragment: at [74]. Her Honour considered it unlikely that the fragment escaped during the operation on 17 July 2020 and came to rest on or near the L5 nerve: at [73]. It was also unlikely, in her Honour’s opinion, that the graft was so precariously placed that any normal activity undertaken by Mr Cleary would have caused it to dislodge: at [77].

67. HCC submitted that the overwhelming weight of the lay and expert evidence did not support the primary judge’s findings. Assuming the version of events for which HCC contended, Professor Stoodley, Dr Dan and Dr Pitham were all of the view that the events would not have contributed to or caused him to suffer injury or disability. However, for the reasons I have already given, I do not consider that the primary judge erred in accepting Mr Cleary’s account of what happened, from which it follows that the evidence of the experts based on the so-called “HCC version of events” is generally of no moment, save for its relevance to the context of the experts’ evidence to which I will come shortly.

68. HCC also submitted that the experts had agreed that on Mr Cleary’s version of events, the collision “could have” contributed to or caused the bone graft to be displaced. HCC submitted that it followed from this that, even on his own expert’s evidence, Mr Cleary failed to establish causation pursuant to s 5D of the Civil Liability Act 2002 (NSW). Instead, HCC submitted that the evidence overwhelmingly pointed to Mr Cleary having suffered the injury before the incident.

69. In their joint report, Dr Dan and Professor Stoodley were asked, “for each of the version[s] of events”, whether or not the incident contributed to or caused the plaintiff any injury or disability. If the answer to that question on either version was “yes”, the next question was whether it was likely that the incident contributed to or caused the injury or disability and, if so, in what way. The precise content of the “versions” of events was explored on the appeal, leading to the tender of a letter of instructions from HCC’s instructing solicitors to both experts, dated 20 February 2023, which included the agreed questions. The instructions to the experts included, relevantly:

“2.    Instructions

2.1   For the purposes of these instructions:

(a)   ‘the Incident’ means the incident alleged when the plaintiff’s bed collided with a wall on 18 July 2020;

(b)   ‘the plaintiff’s version of events’ means the collision of the bed with the wall was such as to cause the plaintiff to slide down the bed with his feet hitting the end and his legs taking the impact; and

(c)   ‘the defendant’s version of events’ means after the bed had stopped, the bed bumped into a wall after moving a distance of 10cm.”

70. On the “plaintiff’s version of events”, which the primary judge accepted, Professor Dan and Professor Stoodley agreed that the collision of the bed with the wall “could have contributed to or caused the bone fragment displacement causing left L5 nerve root injury”. In answering the substantially identical question of whether it was likely that the incident displaced the bone fragment and, if so, what was the likely cause or causes of the bone fragment being displaced, the experts stated:

“On the plaintiff’s version of events, the experts agree that it’s possible that the incident displaced the bone fragment. Professor Dan thinks that it was likely that this occurred. Professor Stoodley is of the view that it was possible but unlikely.”

71. Although he was not an independent expert, the primary judge also had before her the evidence of Dr Pitham, who came to the view that the bone graft was dislodged and found its way under the nerve when Mr Cleary’s bed came into contact with the wall. Dr Pitham had two reasons for coming to that view, as he explained in his evidence in chief:

“There are several parts to it. The first being that I’m confident from Graham’s reporting to me that he did not have the L5 pain in any substantially reliable way until after he reported being collided with the wall. And the second part is that people don’t just magically develop a nerve root injury when they hit something. More likely that you break a bone or you do something dramatic like that if you have a significant trauma, long before you have an isolated nerve root injury. But what makes the difference in this case is that the nerve, as it leaves the spine, it runs over a smooth piece of bone that we call the pedicle, and it slides in and out over that bone, like a rope does on a pulley. And that happens when you change your position.

Now, in this case, there was a nubbin of bone graft sitting underneath the nerve or, at least, came to be there at some stage and as my – my theory based on what I saw with my eyes intraoperatively, based on the scan, based on my knowledge of the way these things work, is that, however it came to be there, that piece of bone graft impinged the nerve as it was pulled, in the normal way it would be, over that pedicle. But rather than passing over a smooth pulley-like structure, it passed over something that was sharp and that caused an acute injury to the nerve, which then led towards subsequent problems.”

72. Shortly thereafter, when asked if there was any other explanation for the injury Mr Cleary suffered “other than a bad incident”, Dr Pitham replied: “Not that is reasonably supported by what I know.” He gave similar evidence in cross-examination:

“Now, as to whether a piece of bone graft can be sitting next to the nerve and be silent. Yes. And typically, when a nerve is injured in the way that this nerve has been injured, we expect that there to have been a significant amount of force involved. Injuries like this don’t just happen because a little tiny bit of bone went tink and touched the nerve. That doesn’t happen.”

73. It was the case, as HCC submitted, that during a physiotherapy review on the morning of 18 July 2020, before he was taken to Radiology, Mr Cleary had complained of left lower limb pain that was not as strong as before the operation and also numbness in his left calf to his foot. Professor Dan and Professor Stoodley agreed, as HCC submitted, that this was suggestive of L5 symptoms before he was taken for a CT. That said, Professor Stoodley accepted that if the bone fragment had been impinging on the L5 nerve during the course of the physiotherapy assessment, it would likely, although not necessarily, have caused Mr Cleary pain and that analgesia would not have masked such an injury entirely. Professor Stoodley also agreed that the physiotherapy assessment was an unreliable indicator of weakness as it occurred shortly after surgery when Mr Cleary was in pain.

73. In response to a question from the primary judge, Professor Stoodley accepted that Mr Cleary’s experience of pain immediately following the incident was evidence that there was something that was compressing the nerve, although he thought it was conceivable that Mr Cleary would get a sudden aggravation of pain from a minor motion. Professor Dan approached this issue differently from Professor Stoodley, stating:

“I would approach it slightly differently, your Honour. I think that in a man who'd already had three previous operations, there was inevitably going [to] be scar there. This means that the nerve is not going to be as mobile as it would be in a normal situation. I think that in the positioning to do the graft, there's going to be opening out of that space and that’s going to stretch the nerve so that it would be common – I think probably describable as usual – that there would be some symptoms because of the tethering of the nerves, and I think that it could reflect something going on but the description that I received of being a sudden, severe pain was more like something being caused at the time of the incident rather than something which was pre-existing.”

75. When asked if he agreed, with this assessment, Professor Stoodley observed:

“I suppose it comes to how sudden and how severe the pain was. So if there was a very sudden, very severe pain then yes, something happened. But I would still think that there was evidence of L5 radiculopathy beforehand. I don't think that that previous surgery on the other side is enough to explain an L5 radiculopathy on the left and that there must have already been something affecting the nerve.”

76. Although HCC again relied in this context on the absence of expert evidence about the forces generated by the impact, the experts did not consider it necessary to qualify the opinions they expressed by reference to any further assumption about force. As Professor Stoodley said in his report dated 2 May 2022, it was “essentially impossible” to calculate the force. He expanded upon that opinion in his evidence during the hearing:

“…I turn my mind to the possibility that you could, by some sort of engineering analysis, work out the forces involved but there’s so many variables here and assumptions that would need to be made. I just don’t think there’d be any realistic process that you could come to a reliable estimate of the actual force.”

77. In light of the factual findings her Honour made about the incident and having regard to the expert evidence and the evidence of Dr Pitham, her Honour did not err in finding that “the bone graft most probably was dislodged and came to rest under the L5 nerve root at the time that the bed collided with the wall”: at [74]. As Mr Cleary submitted, the finding was supported by Mr Cleary’s evidence regarding the lack of relevant pain and symptoms and their sudden onset at and following the collision. Having regard to her Honour’s findings regarding the circumstances of the incident, it was well open to her Honour to be satisfied on the balance of probabilities, having regard to the expert evidence, that HCC’s negligence caused or materially contributed to them: at [89].

Calculation of damages (grounds 16 and 17)

78. The primary judge awarded damages of $583,711, after applying a 30% reduction in recognition that Mr Cleary may have in the future become disabled notwithstanding HCC’s negligence: at [139]-[140]. By grounds 16 and 17 of the appeal, HCC challenged the amounts that her Honour awarded pursuant to a number of heads of damage, which I will address in turn. HCC did not challenge her Honour’s award for non-economic loss. HCC also did not challenge the deduction agreed pursuant to s 66 of the Workers Compensation Act 1987 (NSW) or the discount to be applied. I have also noted above that Mr Cleary accepted that the primary judge erred in awarding him damages for future economic loss, and for past domestic assistance, and that the amount of damages for past economic loss needed to be adjusted downwards.

Past economic loss

79. The primary judge awarded $55,615 for past economic loss. Her Honour noted that at the time of the incident, Mr Cleary was in receipt of workers compensation payments of $807 per week, which was assessed on the basis that his average weekly earnings over the previous 12 months was $1376.85: at [109]. HCC contended that in circumstances where the workers compensation insurer had assessed Mr Cleary as having no earning capacity when assessing the amount of weekly payments resulting from his injury in August 2017, Mr Cleary had not suffered any loss of earning capacity as a result of the incident because he had none at that time. However, her Honour was not persuaded that Mr Cleary had no earning capacity before the incident, noting that before exacerbating his injury in November 2018 he was working 6 hours per day for three days a week, and the overwhelming evidence was that he was keen to return to work and had the support of his employer: at [112]-[114].

80. Her Honour found that it was probable that Mr Cleary would have returned to part time work after the surgery on 17 July 2020 having regard to the pain relief achieved after the fusion operation and the removal of the osteophyte: at [115]. Accepting, over the objection of HCC, the net figure of $1,376 as a reflection of his pre-injury earnings, her Honour found that if Mr Cleary had returned to part-time work, he would have earned a net amount of $800 per week: at [117]. For the purposes of past economic loss, her Honour relied on a period from 30 December 2020 to the date of the hearing, which was 122.5 weeks: at [122]. Her Honour found that so as to avoid double compensation, the figure on which to calculate past economic loss was $454.48 per week: at [121].

81. HCC submitted that no amount should be awarded for past economic loss. Mr Cleary accepted, following receipt of HCC’s reply, that in his written submissions he had erroneously relied on a schedule of the Workers Compensation Act that did not apply to Mr Cleary’s workplace injury. He also accepted that the award needed to be reduced to allow for payments he received from his workers compensation insurer during this period, starting in December 2020 (which was a matter that HCC had raised in its written submissions). Taking those payments into account, and using the same period as the primary judge had used, the total amount that Mr Cleary submitted he should be awarded for past economic loss was $5,229.

82. HCC submitted that in awarding past economic loss her Honour erred in a number of respects. First, it submitted that the primary judge should not have found that Mr Cleary had a capacity for work before the incident on 18 July 2020 and that it was probable that he would return to work following removal of the osteophyte (this was ground 16 of the notice of appeal). HCC alleged that her Honour also failed adequately to consider that: Mr Cleary had not been engaged in gainful employment since workers compensation payments commenced on 9 August 2017; all attempts at returning to work had since been unsuccessful; and his employment was terminated by a letter dated 29 October 2019. Further, as at 18 July 2020, Mr Cleary was in receipt of workers compensation payments which were based on total incapacity following his back injury in 2017, the exacerbation of that injury in November 2018, and the fact that the only form of work that suited his abilities was driving.

83. While Mr Cleary never achieved full pain relief, it was apparent from his evidence that Mr Cleary was keen to return to work. According to Dr Pitham, when he first saw Mr Cleary in early 2020, he was in “very reasonable shape” and with success in improving what was then his right sided leg pain “he would’ve been very physically capable of returning to that job in a short period of time”. It was open to her Honour to find that the signs following the surgery that Dr Pitham performed on 12 May 2020 were positive. In a letter Dr Pitham wrote six weeks after Mr Cleary’s surgery in May 2020, Dr Pitham observed that Mr Cleary initially had an excellent result with good relief of his leg pain. His evidence in this regard was consistent with that of Mr Cleary, who described his right sided pain and symptoms as “gone” following the surgery. The onset of pain in his left leg about a week and a half after that surgery, and discovery of the osteophyte, is what prompted the surgery on 17 July 2020.

84. The early signs following the surgery on 17 July 2020 were also positive. Dr Pitham’s evidence, reflected in a contemporaneous note, was that when he saw Mr Cleary in recovery following the surgery, he observed Mr Cleary experienced excellent relief of his leg pain. When he next saw Mr Cleary in ICU the following morning, Dr Pitham described them as having “a little high five moment”, because his leg pain was so much better that they were both very convinced that the operation had been a success clinically. Having regard to Mr Cleary’s evidence regarding his enthusiasm to return to work, and the evidence he gave about his most recent employer, her Honour did not err in finding that he was keen to return to work and that notwithstanding that his employment had been terminated, that employer had been and remained supportive of Mr Cleary: at [112].

85. HCC next submitted that the pre-incident evidence did not support a finding that if Mr Cleary had returned to part-time work he would have earned about $800 per week, having regard to the lengthy period for which he was in receipt of workers compensation payments and evidence to the effect that the disabilities for which he was receiving those payments, specifically persistent back pain and right sciatica, would have continued in the absence of the incident. The evidence I have just outlined illustrates that the signs following the spinal fusion surgery that Mr Cleary had undergone in May 2020 and the follow-up surgery in July 2020 were positive and supported what her Honour found regarding his capacity to return to work on a part time basis, earning $800 per week.

86. Finally, HCC submitted that the primary judge should not have accepted the net figure of $1,376 as a reflection of Mr Cleary’s earning capacity before his work injury, when that figure was merely a calculation of his average weekly earnings over the previous 12 month period. HCC pointed to other evidence that indicated that over the five years before his injury in 2017, Mr Cleary’s average earnings were in the order of a net amount of $703 per week and submitted that the appropriate finding was that his earning capacity was nil or no greater than a net amount of $703 per week. Her Honour did not err in accepting the 12-month pre-injury average weekly earnings as probable earnings considering it was this work that Mr Cleary would most likely have continued but for the injury.

87. HCC did not make any submissions in response to the schedule that Mr Cleary provided in relation to the reduced figure of past economic loss in the event that the Court upheld the $800 weekly figure. Accordingly, I would reduce the amount that her Honour awarded to the total amount in the schedule, being $5,229.

Future economic loss

88. HCC challenged the primary judge’s award of damages under this head, and Mr Cleary accepted that no damages should have been awarded. Accordingly the amount of damages for future economic loss will be adjusted to $Nil.

Past and future superannuation

89. Her Honour assessed past loss of superannuation at $10,780, and future loss of superannuation at $52,836, awarding these payments on the basis that Mr Cleary’s past and future workers compensation payments did not make provision for superannuation: at [124]. HCC did not take issue with the primary judge’s method of calculation, which involved the usual basis of 11% of past economic loss assessed net of tax and 14% for future economic loss. Consistently with its submissions on past economic loss and future economic loss, HCC submitted that her Honour erred in using a net amount of $800 per week as what Mr Cleary would have earned. In its submission, the assessment of past and future loss of superannuation was appropriately assessed at $Nil.

90. I have addressed HCC’s complaint regarding her Honour’s use of $800 above and rejected it for the reasons outlined above. It follows that the allowances her Honour made for past and future loss of superannuation should not be disturbed.

Past domestic assistance

91. Her Honour awarded an amount of $24,045 for past domestic assistance. As I noted above, Mr Cleary conceded that her Honour erred in awarding any amount pursuant to this head of damage. An adjustment to the damages her Honour awarded will need to be made for this amount.

Future domestic assistance

92. The primary judge awarded an amount of $234,923 for future domestic assistance. Her Honour noted the agreement of the occupational therapists that Mr Cleary should have domestic assistance, and further noted that at the date of the incident he was receiving two hours of commercial domestic assistance per fortnight together with occasional lawn mowing and gardening for one hour: at [126]. The occupational therapist retained by Mr Cleary recommended five hours of assistance each week, while HCC’s occupational therapist recommended two hours per week: at [127].

93. Her Honour found that as a result of the injury he sustained on 18 July 2020, Mr Cleary was “virtually unable to do anything around the house or for his young family”, and that he could only drive for very short distances: at [129]. In relation to the assistance he received from his wife, her Honour stated at [130]:

“At the time of the assessments, the plaintiff’s wife was able to do some work from home which, no doubt left her free to attend to the domestic tasks around the house. During the hearing, Mrs Cleary obtained part time work as an accountant which requires her to leave the house at about 4pm each evening and return at about 9pm. It seems obvious then that the need for commercial assistance to the plaintiff is increased.”

94. At the trial, Mr Cleary claimed future commercial assistance of five hours each week, and HCC submitted that two hours a week was reasonable: [131]. Her Honour observed that the evidence of the respective occupational therapists was not the subject of cross-examination or detailed submissions (at [132]), before concluding at [134]:

“For the period from 17 September 2020 until the date of the hearing 8 May 2020 (sic), it was reasonable and appropriate for the plaintiff to receive 5 hours of assistance each week and that same level of assistance is reasonable and appropriate into the future.”

95. HCC submitted that in reaching this conclusion, the primary judge made no reference to its submissions. Her Honour also erred in failing to take into account that the insurer continued to provide commercial assistance and additional commercial care required, if any, was met by the costs of 3 hours of fortnightly cleaning and 2 hours of fortnightly gardening (monthly in winter). It followed that the claim for future care was properly assessed at nil, and if not, it was properly assessed at 2.5 hours per week.

96. HCC also submitted that contrary to the primary judge’s finding, there was no evidence that Mrs Cleary’s part-time work would result in an increased requirement for commercial assistance. Her Honour’s findings were made despite the absence of evidence of when the care that Mrs Cleary provided was likely to stop. HCC submitted that it was unlikely that there would be any meaningful change in care provided on Mrs Cleary’s resumption of part-time work, and thus future domestic assistance should be assessed on a gratuitous basis at nil. In this respect, HCC submitted that Mr Cleary’s evidence was that Mrs Cleary would leave him alone between the hours of 3:15pm and 9:30pm. There was no evidence that additional care would be required, nor was there evidence of the care Mr Cleary would be deprived of within those hours.

97. Mrs Cleary gave evidence that someone came in for three hours a fortnight to do general cleaning, and that she did everything else. When cross-examined, Mrs Cleary accepted that in terms of the shopping, housecleaning, vacuuming and cooking she had continued to provide Mr Cleary the same level of care after July 2020 as she had provided before July 2020. Mrs Cleary also gave evidence that between the 12 May 2020 operation and the 17 July 2020 operation, Mr Cleary had been able to assist around the house, whereas following the incident he was unable to do this, and he also now walked with the assistance of Canadian crutches.

98. As Mr Cleary observed, Mrs Cleary obtained employment in the course of the trial. Including travel time, between Monday and Friday Mrs Cleary would be absent from the house from the late afternoon and into the evening. As Senior Counsel for Mr Cleary submitted in his oral submissions, this represented a significant change in the domestic arrangements about which Mrs Cleary had given evidence. The case is thus factually distinct from the circumstances of Miller v Galderisi [2009] NSWCA 353, to which HCC called attention. In that case, the Court concluded that the trial judge had erred in awarding damages for commercial domestic assistance because his Honour had wrongly assumed that the respondent in that case required such assistance immediately, when such assistance was in fact being provided gratuitously: at [16]-[19]. The finding of her Honour that HCC impugned related to the fact that Mrs Cleary would be absent from the house for a not insignificant period every weekday afternoon and evening.

99. In the present case, in the joint report, the occupational therapists agreed that Mr Cleary had a future reasonable and necessary requirement for assistance, which should be provided on a commercial basis (other than meal preparation, on the basis that Mrs Cleary could provide that assistance gratuitously). In circumstances where Mrs Cleary had commenced part-time work on a weekday afternoon and evening, it was well open to her Honour to find that there was an obvious need for increased commercial assistance. I accept Mr Cleary’s submission that the provision of five hours of domestic assistance per week was well within a reasonable allowance for care considering the severity of Mr Cleary’s condition.

Future medical expenses

100. The primary judge awarded an amount of $30,000 for future medical expenses. Her Honour referred to Mr Cleary having sought this figure “by way of a ‘buffer’ to provide for a medical expense not otherwise covered by the insurer”: at [125]. In allowing the amount, her Honour stated at [125]:

“It is possible that in the future the plaintiff may have a medical expense not otherwise met by the insurer, such as ongoing psychiatric or psychological support or for some other expense and a ‘buffer’ of $30,000 is claimed. This figure does not seem to be unreasonable and I will make that allowance.”

101. HCC referred to Mr Cleary’s workers compensation insurer having informed Mr Cleary, by letter dated 5 August 2021, that his whole person impairment was over 20% and that he was eligible for claim-related medical expenses for the life of his claim. HCC submitted that her Honour had provided no reasoning for making the provision she did for medical expenses. Given the most likely future circumstances were that the insurer would meet all future out of pocket medical expenses, provision of a buffer for such expenses in the sum of $30,000 was not warranted. HCC relied in this regard on s 13 of the Civil Liability Act, which applies to future economic loss including future medical expenses and provides:

13 Future economic loss—claimant’s prospects and adjustments

(1)    A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)    When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)    If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

102. HCC submitted that the medical expenses constituted “other events” in s 13(1), and that Mr Cleary was required to satisfy the Court that these other events warranted a buffer of $30,000. In the absence of evidence, HCC submitted that the allowance her Honour had made involved speculation on her part.

103. Mr Cleary submitted, by reference to Penrith City Council v Parks [2004] NSWCA 201 at [5] (Giles JA), that it was permissible to award damages for future economic loss by way of a buffer. So much may be accepted. However, as Leeming JA observed in Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265 at [270] (Gleeson and Payne JJA agreeing), while it is possible to award damages for future economic loss by way of a buffer where it is difficult or impossible to be more precise, “that does not obviate the need to comply with s 13”. In Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [277], the Court described the requirements of s 13 as “directed to supplying some meaningful and transparent basis for the award of damages for future economic loss”.

104. There was evidence before the primary judge about the possible need for psychological or psychiatric treatment, as a result of the expert psychiatric evidence that was before her. In a joint report prepared by Dr Anthony Samuels and Dr Jeff Bertucen, psychiatrists, the experts were asked to specify the details of any future treatment Mr Cleary “will require as a result of the Incident (as distinct from any preexisting condition), and the approximate cost and duration of such treatment”. In answering that question, Dr Samuels recommended that Mr Cleary undergo at least fortnightly supported psychological treatment at a cost of $300 per session for a period of six months. Dr Bertucen added that the input of a psychiatrist periodically was not unreasonable, and monitoring of mood and expert advice regarding pharmacotherapy would be a reasonable expense every two to three months, at a cost of $300 per half hour over the next 12 months.

105. It may be that her Honour was referring to this evidence in her reasons at [125], when she referred to possible “ongoing psychiatric or psychological support” expenses. However, there was no suggestion in the evidence that the workers compensation insurer would not meet the associated expense, and her Honour did not so find. Instead, her Honour described Mr Cleary having a medical expense not otherwise met by the insurer, or “some other expense”, as “possible”. Having regard to the requirements of s 13 of the Civil Liability Act, I do not consider that the award that her Honour made for a buffer was justified on the evidence and would allow HCC’s appeal in respect of it.

Future equipment

106. Her Honour awarded an amount of $15,000 for future equipment, stating at [135]:

“The plaintiff also sought financial provision for equipment, such as bathing aids and a motorised scooter. A figure of $15,000 is sought and is supported by the Occupational Therapy reports.”

107. HCC submitted that her Honour erred in not considering the provision of such equipment through Mr Cleary’s insurer, having regard to its letter to Mr Cleary to which I have referred above. HCC submitted that the award should be properly assessed at $Nil.

108. The joint report of Christine Eloff and Sanja Zeman, occupational therapists, dated 10 January 2023, included a schedule of aids, appliances and home modifications that the experts agreed were required. Most of the items were described as being required before the incident on 18 July 2020, but some of them, including a motorised scooter, were not so described. As HCC submitted, it did not follow inexorably from the inclusion of items in the schedule to the joint occupational therapists’ report that an amount of damages should have been awarded against HCC to pay for them, given the position of the workers compensation insurer. It was necessary for her Honour to consider whether the equipment would be funded by the insurer; and it is not apparent from the reasons that her Honour did so.

109. Mr Cleary submitted that the allowance her Honour made for equipment should not be disturbed, on the basis that equipment such as bathing aids and a motorised scooter had not been paid by the workers compensation insurer. In support of his submission, Mr Cleary relied upon a schedule of payments made by his workers compensation insurer, which did not identify any payments being made after the date of the incident for equipment of the nature that the occupational therapists identified in their joint report. However, as Senior Counsel for HCC submitted in reply, the evidence before the primary judge, including the schedule on which Mr Cleary relied, did not indicate that claims for the equipment in question had been made to the workers compensation insurer and, further, that the insurer had declined them. It follows that I would allow HCC’s appeal in respect of this head of damage.

Conclusion as to damages

110. It follows that I have reached the conclusion that Mr Cleary is entitled to reduced damages in the sum of $500,268, having regard to the heads of damage her Honour adopted at [138]:

1. Non-economic loss, which HCC did not challenge: $246,500;

2. Past economic loss, which HCC challenged and I have not accepted, noting Mr Cleary’s concession that a reduction needed to be made: $5,229;

3. Future economic loss, which HCC challenged and Mr Cleary conceded: $Nil;

4. Past superannuation, which HCC challenged and I have not accepted: $10,780;

5. Future superannuation, which HCC challenged and I have not accepted: $52,836;

6. Past domestic assistance, which HCC challenged and Mr Cleary conceded: $Nil;

7. Future domestic assistance, which HCC challenged and I have not accepted: $234,923;

8. Future medical expenses, which HCC challenged and I have accepted: $Nil;

9. Future equipment, which HCC challenged and I have accepted: $Nil; and

10. Deduction for likely s 66 lump sum, which was not challenged: ($50,000).

111. Noting that HCC did not challenge the reduction in damages by 30%, having regard to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (see [139]-[140] of the primary judgment), the ultimate award of damages should be $350,187.60.

Conclusion

112. I would dismiss the appeal in so far as it relates to liability and allow the appeal in part in so far as it relates to damages. In relation to costs, Senior Counsel for Mr Cleary submitted that costs would depend upon the Court’s decision, and foreshadowed that evidence may be led in that regard. It is appropriate that the parties be given an opportunity to make brief submissions as to costs both of the appeal and in the court below, noting that the primary judge made a costs order in part on an indemnity basis.

113. I propose the following orders:

1. Appeal allowed in part.

2. Set aside order 1 of the orders made by the District Court on 11 August 2023 and in lieu thereof, order judgment for the plaintiff in the sum of $350,187.60.

3. With respect to the costs of the appeal and the costs order made below, the parties are to provide within 14 days of the date of these orders either:

1. short minutes of agreed orders, or

2. any evidence and written submissions of no more than 5 pages, each party having a further 7 days to reply, with costs to be determined on the papers.

114. STERN JA: I agree with Mitchelmore JA.

115. HARRISON CJ at CL: I agree with the judgment of Mitchelmore JA and with the orders her Honour proposes.

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Decision last updated: 15 March 2024