Hogan v Healthscope Limited (Ruling)

[2019] VCC 739

g

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CI-17-05599

KIRSTEN LOUISE HOGAN	Plaintiff
v
HEALTHSCOPE LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Geelong
DATE OF HEARING:	21, 22, 23, 24 and 27 May 2019
DATE OF RULING:	27 May 2019
CASE MAY BE CITED AS:	Hogan v Healthscope Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2019] VCC 739

RULING
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Subject:  INDUSTRIAL ACCIDENT JURY TRIAL

Catchwords:             Admissibility of evidence of expert ergonomist – nature and extent of the expert’s expertise and experience – whether WorkSafe publication (Transferring People Safely) is admissible into evidence and capable of being the subject of expert evidence – legal status of the document – whether a breach of recommendations confers legal liability – whether document may be used as a measure or indication of breach of duty

Legislation Cited:     Occupational Health and Safety Regulations 2007; Occupational Health and Safety Act 2004

Ruling:  Evidence inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M J Walsh with Ms S A Lean	Ryan Carlisle Thomas
For the Defendant	Mr A J Mc G Moulds QC with Mr M K Clarke	Wisewould Mahony

HIS HONOUR:

1       This is an industrial jury trial in which the plaintiff, Ms Hogan, claims pain and suffering damages as a result of an injury to her lower spine which she says occurred in the course of her employment as a nurse at the Geelong Private Hospital on 11 July 2014.  There is little doubt she has a serious lower back condition which has required surgery, including fusion surgery in 2016.  The injury occurred when she was attempting, with other nursing staff, to transfer a patient from an operating table onto a trolley after a medical procedure.  She says that as she was reaching across to “roll” the patient onto the trolley, she suffered pain in her right shoulder.  Within days, she said she developed pain in her lower back, radiating to her right hip area.

2       She alleges the conduct of the defendant was negligent and was in breach of the Occupational Health and Safety Regulations 2007 (“the Regulations”). The defendant denies negligence, denies it was in breach of the Regulations and says that whatever the plaintiff’s lower back condition, it was not causatively related to the incident of July 2014.

3       The plaintiff seeks to call to an ergonomist, Mr Mark Hennessy, and to adduce evidence from his report dated 1 August 2018.  The defendant takes issue with the admissibility of various aspects of the report, in particular, reference by Mr Hennessy to a document entitled “Transferring People Safely – Handling Patients, Residents and Clients in Health, Aged Care, Rehabilitation and Disability Services” (“the Handbook”).

4       For the purpose of this ruling, I shall presume Mr Hennessy will give evidence in accordance with his report.

5       Mr Hennessy describes himself as “an applied scientist working full time as a consultant in public health and safety in private practice, specialising in ergonomics”.  His academic qualifications include a Bachelor of Science with majors in physics and physiology, a Graduate Diploma in Epidemiology and Biostatics, and a Master of Public Health.  He is a member of various professional organisations relating to ergonomics which he describes as “the study of the relationship between people and the physical environments in which they live, recreate or work”.  He claims expertise in anatomy, physiology, anthropometry (the dimensions of the human body), physics and biomechanics.  He claims experience in providing advice in health and safety policies to a range of organisations, including within the health sector.  He says he has undertaken many manual-handling risk assessments in the healthcare area.  He is a co-author of the Handbook.

6       Mr Moulds, in oral submissions on 24 May 2019, identified a number of paragraphs of the report, which he submitted were inadmissible and ought not be placed before the jury.  Sensibly, Mr Walsh, for the plaintiff, conceded some of the paragraphs were inadmissible.  Those that remain in contention are:

·paragraph 1.22

·paragraphs 6.2–6.8 and the tables referred to

·paragraphs 7.5–7.10 and the tables referred to

·paragraphs 7.14–7.15 (Mr Walsh conceded paragraph 7.16 was inadmissible)

·the second bullet point under paragraph 7.17.

7       In essence, Mr Moulds’ objection is to any reference to the Handbook and submitted it should not be tendered nor placed before the jury.  His submissions in support were as follows:

(a)Section 149 of the Occupational Health and Safety Act 2004 (“the Act”) provides that, for the purpose of practical guidance of persons having duties or obligations under the Act, the Minister may approve a compliance code. The Handbook is not an approved compliance code. In the “hierarchy” of things, the Handbook sits below a compliance code;

(b)Section 150 of the Act provides that even a compliance code does not give rise to any civil liability. If a promulgated compliance code does not give rise to civil liability, how could a breach of the Handbook do so?

(c)The Handbook itself is said to contain material “of a general nature only and is not to be used as a substitute for obtaining legal advice”. It is said to be “for general use only” and should not be viewed as a definitive guide to the law and should be read in conjunction with the Act and the Regulations. Further –

“While every effort has been made to ensure the accuracy and completeness of the Guide, the advice contained may not apply in every circumstance.  Accordingly, the Victorian WorkCover Authority cannot be held responsible and extends no warranties to the suitability of the information for any particular purpose and actions taken by third parties as a result of information contained in … [the Handbook].”

(4)Given the Handbook has the emblem of WorkSafe Victoria on the front page and WorkSafe is referred to throughout the document, even if it was said to be simply a guide and not a document giving rise to any civil liability, either as a breach of duty of care or in respect of statutory breach, nonetheless there would be a risk that the jury would assume that breach of any of the recommendations contained would lead a jury to conclude there was a breach of the duty of care, or breach of the Regulations;

(5)Under the heading “How Should This Guide Be Used?”, it is said that the Handbook is flexible around the needs of a workplace.  Further –

“It is the duty of individual employers to develop their own approach to preventing injuries associated with handling and moving people.  The tools in this guide are intended to be part of such a program.  They should be used whichever way best suits each workplace and employer situation.  You are encouraged to customise and tailor the tools to integrate them into your own occupational health and safety management systems.  It is important to remember that the tools presented here do not work in isolation.  We have not intended this guide to be a standalone systematic agency-wide program for every situation.”

(6)Under the heading “Tool 4: Task Descriptions and Class Risk Assessments”, there is a table entitled “Transfer 3:  Rolling the Patient”.  Under the heading “High Risk: Very Likely to Cause Injury – Not Recommended Practice”, there is reference to the rolling of a patient who is not able to assist.  There is then written the following:

“This dangerous practice includes the following:

Two to three handlers stand along the unaffected side of the patient’s body, lean over to the patient’s far (affected) side of the body and pull the patient’s body over onto the near (unaffected) side, maintaining the patient’s body alignment and lifting and supporting the patient’s outside leg.  An additional handler positioned on the patient’s far side may simultaneously push the patient over onto the unaffected side.

The handlers hold the patient on their side until the procedure is completed then lower the patient onto their back, maintaining the patient’s body alignment.”

This, says Mr Moulds, is not the type of activity the plaintiff was performing on 11 July 2014, which was said to give rise to back injury.  He says Mr Hennessy’s report makes reference to this task and suggests what Ms Hogan was performing was a dangerous activity in breach of that recommendation;

(7)Finally, Mr Moulds submitted that there ought be no reference in the course of Mr Hennessy’s evidence to the Handbook at all.  He did not object to Mr Hennessy giving evidence within his expertise as a “normal expert”, using the history obtained, his observance from his view at the operating clinic and his expertise and experience.

8       In response, Mr Walsh submitted:

(a)He contended the final sentence of paragraph 7.3 was admissible as being within Mr Hennessy’s expertise given his qualifications;

(b)The “Patient Transfer Risk Assessment Worksheet” was important and relevant.  Mr Walsh said he opened to the jury that a simple risk assessment could have been carried out.  The document referred to a number of aspects of the activities being performed, which the plaintiff said were in breach of the duty of care, including awkward postures, the exertion of high force, reaching across a table, poor environment design and insufficient trained staff.  These were all matters referred to in the Worksheet;

(c)In relation to the “Rolling the Patient” table, he said the activity depicted in rolling a patient where the patient was unable to assist, was at least similar to that being undertaken by the plaintiff.  It was not to the point whether the patient was being rolled from a prone position to halfway up or otherwise.  The forces were the same.  In the event there was any issue about the applicability of the description, Mr Hennessy could be called in a voir dire to clarify the meaning of the example;

(d)Mr Walsh conceded that the imprimatur of WorkSafe Victoria would “carry weight”, but given it was a publication of that institution it is clearly relevant for a proceeding such as this.  The fact that Mr Hennessy was a co-author was irrelevant, save to say that it indicated he had expertise in the area.

Analysis

9       In relation to paragraph 7.3, I am satisfied Mr Hennessy has the expertise and experience to give opinion evidence that the lead garment the plaintiff was wearing at the time of the incident would have increased the compressive forces upon her spine.  Not only has he qualifications and experience in ergonomics, I am satisfied that his training in physics, anatomy and physiology is sufficient to enable him to give that opinion. 

10      Further, as appeared to be conceded by Mr Moulds, I am of the view he may give an opinion that leaning over the theatre table attempting to roll a patient would put pressure on the plaintiff’s lower spine, such as to give rise to lower back injury.  There is a caveat to the evidence he would be able to give, however, in that given Mr Hennessy is not a medical practitioner, I am of the view he would not be able to give evidence about what such compressive forces may do to a lumbar disc, in particular a lumbar disc which has previously been injured.  Just how far Mr Hennessy’s evidence in this regard will be permitted to go, will depend upon what he says and whether objection is taken to it.

11      The only issue then remaining is whether and to what extent Mr Hennessy may make reference to the Handbook, and whether it may be placed before the jury.

12      There were no submissions directed about how the Handbook came into existence, whether it is an official WorkSafe publication and its precise status within the healthcare community.  It is clearly not a document originating from the defendant, as is, for example, the Healthscope Safe Patient Handling in the Theatre document.[1] It is not a “compliance code” which may be approved by the Minister pursuant to the provisions of s149 of the Act. That section permits the approval of such codes “for the purpose of providing practical guidance to persons who have duties or obligations under this Act or the Regulations”. Thus, it is not contemplated by the Act as a document which might give such guidance. It is noted that pursuant to s152 if the Act, a person who complies with a compliance code as to a particular duty, is said to be taken to have complied with the Act and the Regulations in relation to that duty.

[1]Exhibit “G”

13      While the Handbook bears the emblem of “WorkSafe Victoria”, it is difficult to know what formal or official status it has, either within that organisation or outside it.  Under “Further Information” at the back of the Handbook, it says:

“This guide is designed to assist organisations to reduce the risk associated with the handling of patients and assist employers to comply with their legal obligations under … [the Act] and its associated regulations and compliance codes.”

14      The Handbook says that it was developed by Mr Hennessy and another consultant, Ms Louise O’Shea, a nurse with experience in occupational health and safety matters, and who I am informed will give evidence in this trial.

15      At best, the Handbook is clearly a general guide only for use by institutions in the health, aged care and rehabilitation areas.  At a number of points, the document is said to contain general information only and it is said it should not be used as a definitive guide to the law.  Further, the Handbook is said to be a tool to assist employers develop their own occupational health and safety programs.  There is nothing in the document to suggest it provides a comprehensive nor mandatory set of requirements or assessments in relation to, inter alia, the handling of patients in operating theatres.  At best, it provides suggestions or tools which may help to prevent injury in the workplace.

16      There is no evidence as to whether the document was available at the hospital where the plaintiff worked, although Mr Hennessy says it was readily available in the health industry and “findable via a Google search”.

17      It is difficult to know, without evidence from Mr Hennessy, whether the description of the activity referred to in Tool 4 “Rolling the Patient” has application to the task the plaintiff was doing on the relevant day.  However, that issue, and the extent to which the Handbook was available within the hospital community, can be the subject of evidence in a voir dire.

18 Given its lack of any legislative status, it is clear that any breach of the advice provided in the Handbook would not, of itself, constitute a breach of the duty of care or a breach of the Regulations. At best, it could only be said to be an indicator of the sorts of assessments that ought to be undertaken, and steps taken to reduce the risk of musculoskeletal injury. In that sense, it is not dissimilar to a pleading in a Statement of Claim that a particular of negligence is a breach of the Regulations.

19      It is not uncommon for compliance codes, when approved, to be admitted as evidence, not as constituting a breach of duty, but as providing information to demonstrate whether something could have been done or known in respect of work practices.  Such codes may be taken into account, although they do not have any specific legal force.

20 However, I am satisfied the Handbook ought not to be used nor taken into account in that way. It is a very different document from one approved officially by the Minister under the Act. It is clear from its language it has only general application, and that it may be used as a tool, along with other occupational health and safety practices in a health-related workplace.

21 It suffers from two real vices. Firstly, it has the imprimatur of WorkSafe Victoria. The second is that it will be referred to by Mr Hennessy, an expert in the area, as setting out real requirements for transferring patients in hospital theatres. Given these matters, it would be a relatively easy step for a jury to take the view that any breach of the requirements of the Handbook constituted a breach of the duty of care, or a breach of the Regulations, despite a firm direction that it was no more than a guideline to be taken into account when assessing breach of duty of care or statutory breach. There is, as Mr Moulds points out, the real risk that the document achieves a status in the mind of the jury of a legislative or mandatory nature.

22      In those circumstances, the document or its contents should not be referred to by Mr Hennessy and not form part of the evidence in this trial.

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