Lane, S.A. v Capital Territory Health Commission

[1985] FCA 331

Re: SHIRLEY ANN LANE
And: CAPITAL TERRITORY HEALTH COMMISSION
No. ACT G35 of 1984
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Kelly J.
Neaves J.

CATCHWORDS

NEGLIGENCE - Employer and employee - Safe system of work - Nursing home - Female nurse injured when lifting patient from wheelchair to bed - Failure to provide male wardsman to assist - Whether nurse exposed to unnecessary risk of injury which employer should have foreseen - No case made for intervention of appellate court.

HEARING

CANBERRA
#DATE 17:7:1985

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.
   
   Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Shirley Ann Lane, the appellant, has appealed from a judgment of the Supreme Court of the Australian Capital Territory directing that judgment be entered for the Capital Territory Health Commission, the respondent, in proceedings commenced in that Court by the appellant as plaintiff against the respondent as defendant seeking damages for personal injuries sustained by her on 18 August 1978 in the course of her employment with the respondent at the Allambee Nursing Home, Aranda in the Australian Capital Territory. In those proceedings the appellant alleged that the injuries were caused by the respondent's negligence.

The appellant was employed as a trainee nurse aide. She sustained a back injury when, in the course of her duties, she, together with another nurse aide - Nurse Duncombe (married name Dascoli) - were lifting a male patient named Alexander McDonald from a wheelchair to a bed. Mr McDonald was, as the learned trial judge found, a fairly big man, 12-13 stones in weight, 5 feet 10 inches to 6 feet in height. He was paralysed down one side from a stroke. He was an angry, bitter man which made him a difficult patient to manage from time to time. He could not help himself much and was incontinent. Sometimes he would behave in a co-operative fashion and he was then easier to lift from bed to wheelchair or from wheelchair to lounge chair. If he was angry and not co-operative he was harder to lift. At those times he was also abusive.

The events leading up to the appellant's injury were stated by the trial judge as follows:-

"At about 6.00pm on that day the plaintiff was working on the evening shift under the supervision of a trained sister. She went to the loungeroom to attend to the patient, intending to take him to the toilet, change him and then put him to bed. She had the assistance of Nurse Duncombe, another nurse aide. Together they lifted him from the loungechair to the wheelchair. Because he was grumpy they had a little difficulty in doing so. They took him to the toilet in the wheelchair, lifted him from the wheelchair, turned him around and put him on the toilet. Then they lifted him from the toilet to the wheelchair, took him to his bedside and tried to undress him, but he refused to co-operate. After managing to dress him in his pyjama coat they decided to lift him into bed and finish dressing him on the bed. Nurse Duncombe took hold of the upper part of the patient's body by putting her arms under his armpits and holding his wrists, and the plaintiff took a grip of the patient around the legs and above the knees. Together they commenced to lift him. He would not assist and moved during the lift."

The injury occurred as the patient was being lifted from the wheelchair to the bed. In finding that Mr McDonald "did move in some way", his Honour rejected the appellant's evidence that the patient was "throwing his arms around".

The Allambee Nursing Home was at the relevant time a nursing home catering mostly for people who were unable to look after themselves. They included ambulant and non-ambulant patients. About a third of the patients at the relevant time were able to get about on their own, but all the patients were there because they were not able to care for themselves. They were nursed out of bed if possible and this involved a lot of movement of patients through the day. They had to be taken from their beds to bathrooms and toilets and were encouraged to mingle with other patients in lounge areas.

During the appellant's employment at the nursing home the staff were from time to time given instruction in the manual lifting of patients. The staff were taught how to stand, how to use their knees and how to bend during the lift so as to use the lifter's body to best advantage and minimise the strain on the lifter's back. Instruction was also given as to how nursing staff were to co-operate in moving patients and the appellant acknowledged that it was always stressed that a staff member had to have assistance when lifting a patient. The trial judge found that there had been no failure on the part of the respondent to give the appellant adequate instruction as to the standard and appropriate method for lifting patients and that the method used for lifting Mr McDonald on the occasion in question was the method which was at that time the accepted and widely used method and the method which the appellant had been taught to use when lifting a patient from a chair to a bed. His Honour also found that the appellant regarded it as part of her normal duties to lift patients in that way.

In accordance with that method, Nurse Duncombe took hold of the upper part of Mr McDonald's body by positioning herself behind him but on the side nearest to the bed, the side of the wheelchair having been removed, and putting her arms under his armpits and holding his wrists. The appellant took a grip around Mr McDonald's legs above the knees. The wheelchair was "right up against the bed into which they were lifting the patient". His Honour found that the vertical lift required was about 6 - 8 inches. He also found that the lift required was "not substantial".

At the relevant time male staff were employed at the nursing home as wardsmen during both the morning and evening shifts but not on the night shift. There was unchallenged evidence that the employment of male staff in nursing homes was at that time a rarity, most homes employing only female staff. Consequently that staff normally performed all lifting operations, on occasions with the assistance of lifting devices. In this nursing home one wardsman was rostered for duty from 7.15am until about 4.00pm. Another was rostered for duty commencing at about lunch time until 9.00pm. Two wardsmen were thus rostered to be on duty from lunch time to about 4.00pm after which there was one rostered until the night shift commenced at 9.00pm. However, for some reason not fully explained in evidence, no wardsman was on duty at the time the appellant's injury was sustained.

On the hearing of the appeal it was submitted that the evidence established that the respondent was in breach of its duty to the appellant in -

(a) failing to maintain a system whereby a wardsman was available to assist the appellant;

(b) requiring the appellant to lift the particular patient at all.

Before the Supreme Court the appellant had relied on other particulars of negligence but these were not pressed on the hearing of the appeal and need not be further considered.

In relation to the failure to provide male assistance the trial judge said:

"In my view it is a matter of common knowledge that nursing staff must, as part of their ordinary range of duties, lift patients short distances such as from wheelchair to bed and vice versa. Lifting patients in that way is commonplace in the performance of the functions of their chosen profession. What the plaintiff was required to do on this occasion was within her apparent capacity. She was trained and conditioned by practice. She had been doing this sort of lifting since 1973. If a male wardsman had been available, it is probable that the male wardsman would have lifted from the head end of the patient, as that is the heavier end in such a lift, and the plaintiff would have lifted the patient's legs i.e. in the same way as she was lifting when the accident occurred.

I find therefore that failing to provide a male wardsman at the time when the plaintiff was injured did not unreasonably expose the plaintiff to the risk of injury. There was no unnecessary risk to the plaintiff which the defendant should have realised or foreseen.

In my opinion it has not been shown that, to a nurse aide such as the plaintiff, used to the class of work which she was performing, there was any risk of injury at all, or if there were, that it was an undue risk of injury such as would cause a reasonably prudent employer to take steps to prevent it. In other words there was no foreseeable danger from the lifting of the patient by the method used."

It was not suggested that the trial judge misdirected himself as to the legal principles to be applied where, in an action for damages for negligence on the part of an employer, an injured worker relies upon a defect in a system of work. What was submitted on behalf of the appellant was that this Court should set aside the findings of the trial judge that in failing to provide a male wardsman the respondent did not unreasonably expose the appellant to the risk of injury and that, in the particular circumstances of this case, there was no unnecessary risk to the appellant which the respondent should have realised or foreseen and no foreseeable danger from the lifting of the patient by the method used. The appellant also challenged the findings that the lift was not substantial and was within the appellant's apparent capacity.

Counsel for the appellant submitted that the introduction of the system whereby male wardsmen were employed to assist female nursing staff with the lifting of heavy or difficult patients was itself a recognition that there was a foreseeable risk of injury to staff in lifting such patients. That system had been introduced, it was said, due to many instances of back injuries at the nursing home.

No evidence was led in the appellant's case to establish that there had been instances of back injuries at the nursing home and what evidence there was on the question was scant and unsatisfactory. The question appears to have arisen only incidentally in the course of the trial and we do not read what was said by his Honour in his judgment as amounting to a positive finding that there had been such instances prior to the injury suffered by the appellant. The only evidence on the point was that given by Sister Johnson who was asked in cross-examination whether, before the introduction of wardsmen, there had been many back injuries among the nursing staff. The witness answered -

"We started wardsmen in early 1978. Yes, I had heard of a few but I believe we had a lot more even in 1978."

The witness then gave the following evidence -

"Q. Was not there considerable pressure to introduce the wardsmen for the purpose of assisting nursing staff in the lifting of patients?

A. Yes.

Q. It was quite clear that a male lifter was a more efficient lifter than a female lifter?

A. Ninety nine per cent of the time, yes, sir.

Q. Ideally, heavy patients should be lifted by two male wardsmen?

A. We have never had two - - -

Q. If they were available?

A. If they were available, yes.

Q. Ideally, two male wardsmen?

A. Yes.

Q. But if you are pressed for staff, you can get away with a male wardsman and a female nurse?

A. That is so, yes.

Q. But the last resort, and the very last resort, and indeed an unsafe resort, is for two nurses to try to lift a heavy patient of a weight of, say, 13 stone?

A. Yes, that we did many times, sir.

Q. But that is a last resort and unsafe?

A. Well, that is why we are pressed for wardsmen, yes."

Counsel suggested that the last answer should be read as if the word "are" were omitted. We do not think this is permissible but in any event the evidence does not establish that there was any instance prior to 18 August 1978 when a member of the nursing staff suffered injury to her back while engaged in lifting a patient from wheelchair to bed by the accepted and widely used method and, in particular, where the staff member concerned was lifting the patient's legs which, as his Honour found, was the lighter end in such a lift. Even if it be accepted, as counsel for the respondent did in argument, that the evidence showed that the system of employing wardsmen had been introduced because of the risk of injury generally, the evidence is far from sufficient to sustain a conclusion, pressed upon us by counsel for the appellant, that the respondent should have appreciated that to require the appellant to lift Mr McDonald in the particular circumstances that existed on the evening in question by the approved lifting technique and without the assistance of a wardsman amounted to exposing her unreasonably to the risk of injury.

Counsel for the appellant also submitted that the finding of the trial judge that the task the appellant was engaged in at the time she was injured was within her apparent capacity was not open on the evidence. We are unable to accept this submission. The evidence given by the appellant was, in our view, sufficient to warrant the finding made by his Honour.

In our opinion there was sufficient evidence before the trial judge to support each of the findings that he made. It was for the appellant to establish before the Supreme Court that there was, in the particular circumstances, a foreseeable risk of injury, that there were other means of carrying out the work which were reasonably practicable and the use of which would have eliminated the risk and that the failure to employ those other means demonstrated a lack of reasonable care on the part of the respondent. We are not satisfied that the appellant has established error on the part of the trial judge as to any of these matters which were essentially matters of fact. The appellant has not, in our view, shown any sufficient basis upon which this Court should interfere.

The appeal should, therefore, be dismissed with costs.

JUDGE2

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J). In that Court the appellant claimed damages in respect of a back injury sustained by her at work when in the employ of the respondent on 18 August 1978. She alleged that the injury was due to the respondent's negligence. The respondent denied negligence and alleged contributory negligence on the part of the appellant. The learned trial Judge refused to find the respondent negligent and entered judgment for it.

On 18 August 1978 the appellant, then 34 years of age, was employed by the respondent as a trainee nurse aide at the Allambee Nursing Home, Aranda (Allambee). On leaving school she had first trained as a nurse for about 2 years but had then entered the Public Service. In January 1973 she began work at Allambee as a nurse's assistant. The respondent took over Allambee in 1975. Subsequently it offered the appellant the opportunity to train as a nurse aide. She accepted the chance with a view to being granted the appropriate certificate. She hoped that thereafter she might train as a nurse. Allambee catered for geriatric patients and those who had suffered strokes or other severely incapacitating disabilities. Ambulant and non-ambulant patients were cared for. Roughly a third of the patients were able to get about on their own but most seem to have needed at least some supervision when dressing, showering, bathing or going to the toilet. But essentially the patients could not care for themselves in their own homes. Good nursing policy dictated that patients should be out of bed as much as possible and this necessarily involved much assistance of patients in and out of beds, chairs, wheelchairs and baths.

During the appellant's employment at Allambee the staff were from time to time given instructions in movement and lifting of patients. Periodic lectures were given by physiotherapists at intervals, the appellant thought, of about 3 months or more often as occasion demanded. She said that such occasions might arise if a back injury had been sustained. The instruction was directed towards minimising strain on a lifter's back. Instruction was also given as to how the nursing staff should cooperate in moving patients and the appellant acknowledged that it was always stressed that when lifting a patient a staff member had to have assistance.

While the appellant was working at Allambee, male staff, wardsmen, were employed during the day time. In the ordinary course of events one wardsman would be on duty during the day shift from about 7.15 a.m. and one during the afternoon shift until about 9 p.m. so that from lunchtime until 4 p.m. two wardsmen would be on duty, their shifts overlapping. No wardsman did duty during the nightshift between 9 p.m. and 7.15 a.m. perhaps because there was little need to expect that lifting of patients would be necessary. For a reason never fully explained in the evidence no wardsman or male nurse was on duty during the afternoon shift when the appellant was injured although male nurses were also employed at Allambee.

As part of her training whilst employed at Allambee the appellant was sent to work in the Canberra Hospital for about 3 months at the end of 1977 and the beginning of 1978. While there she nursed a Mr McDonald who subsequently became a patient at Allambee. He was, as the learned trial Judge found, a fairly big man, 12-13 stones in weight, 5ft. 10in. to 6ft. in height and paralysed down one side from a stroke. He was an angry and bitter man and at times this made him a difficult patient to manage. He could not help himself much and was incontinent. Sometimes he would behave cooperatively and, if he did, was easier to lift from bed to wheelchair and from wheelchair to lounge chair. If angry and uncooperative he would tighten himself up, refuse to cooperate and become harder to lift. At those times he was also abusive. The learned trial Judge accepted the appellant's description of him then as one like a child having a tantrum.

On 18 August 1978 the appellant had been giving nursing assistance to Mr McDonald for a period of about six to eight weeks. At about 6 p.m. on that day she was working on the afternoon shift under the supervision of a trained sister. She went to the loungeroom to attend to the patient, intending to take him to the toilet, change him and then put him to bed. She was being assisted by Nurse Duncombe (now Nurse Dascoli), another nurse aide. Together they lifted him from a lounge chair to a wheelchair. They had some difficulty in doing so because he was grumpy. Using the wheelchair they took him to the toilet, lifted him from the wheelchair, turned him round and seated him on the toilet. Subsequently they lifted him from the toilet to the wheelchair, took him to his bedside and tried to undress him but he refused to cooperate. They managed to dress him in his pyjama coat and then decided to lift him into bed and finish dressing him on the bed. Nurse Duncombe took hold of the upper part of his body by putting her arms under his armpits and holding his wrists while the appellant took a grip round his legs above the knees. Together they commenced to lift him. He would not assist and moved during the lift.

The appellant gave evidence that the patient was throwing his arms around and that when being moved from the wheelchair to the bed he really started fighting. On the other hand Nurse Duncombe said that he did move while being lifted, "jiggled himself or something", but that he did not wave his arms around. The learned trial Judge accepted that the patient did move in some way but not in the way described by the appellant, "throwing his arms around". It is to be remembered that the patient was described as paralyzed down one side.

As the two women were lifting the patient from the wheelchair to the bed the appellant felt a severe pain in her back and leg. She was taken shortly thereafter to the Casualty section of the Canberra Community Hospital. She was eventually found to have suffered disc lesions at two levels of her lumbo-sacral spine. She underwent surgery. She has never returned to work and it is unlikely that she will ever return to nursing duties.

The appellant gave particulars of the alleged negligence. They may be summarised as follows:-

(a) failure to provide a system of work which by the use of mechanical assistance or assistance from male nurses or wardsmen would ensure that the appellant would not be subjected to undue strain when lifting patients who were heavy, difficult to lift or reluctant to be lifted;

(b) failure to protect the appellant from the danger of over heavy or dangerous lifting by warning, instruction or otherwise; and

(c) requiring or permitting the appellant to lift a man weighing approximately 13 stones who was known to be difficult to lift.

At the hearing the only ground pressed was that, the injury being foreseeable, the respondent had required the appellant to lift a difficult patient, not reasonably manageable without the assistance of a male wardsman respected by the patient, without such assistance.

The learned trial Judge considered the relevant duty of care. He said:-

"Where, in an action for damages for negligence on the part of his employer, an injured workman relies upon a defect in a system of work there must be evidence that the system unreasonably exposed the workman to risk of injury, i.e. that the employer failed to take reasonable steps to provide a system which would be reasonably safe having regard to the dangers necessarily inherent in the operation (see per Lord Tucker in General Cleaning Contractors Ltd v. Christmas (1953) A.C. 180 at 195). Whether or not there has been such a failure on the part of the employer may in some cases be resolved by the application of common knowledge; in others it may be necessary to show a departure from long established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimise the risk was reasonably available (Neill v. NSW Fresh Food and Ice Pty Ltd (1962-63) 108 C.L.R. 362 per Taylor and Owen JJ at 369). The duty is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary (his Honour's emphasis) risks of injury (Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18 per Dixon C.J. at p.25)."

Against that background his Honour referred to submissions that had been made. He said:-

"It was submitted on behalf of the plaintiff that the defendant had unreasonably exposed the plaintiff to the risk of back injury. On the evidence there had been many instances of back injury at Allambee Nursing Home. Accordingly, a system had been introduced whereby male wardsmen were employed to assist the female nursing staff in their lifting duties but, so it was submitted, the system was defective in that there were only two wardsmen provided and at times only one wardsman or no wardsman was available.
It was submitted that no wardsman was reasonably available on the subject occasion when the plaintiff sustained her injuries and that, because the patient was particularly difficult, mechanical aids should have been used in the lifting process."

During the hearing of the appeal counsel for the appellant submitted that the learned trial Judge had found that before the appellant was injured a system had been introduced whereby male wardsmen were employed to assist female nursing staff in lifting, due to many incidents of back injuries at Allambee.

The only part of his Honour's judgment which might support the submission that he had made that finding is that part underlined above. In its context it is certainly arguable that all that his Honour was doing was referring to submissions made on the appellant's behalf. However, during the hearing, it was put to senior counsel for the respondent that the first of the underlined sentences constituted a finding of fact. He did not disagree but sought to show that the evidence to support such a finding was at best skimpy and unsatisfactory. Some of that evidence was given by the appellant and some by Sister Johnson, called on behalf of the respondent.

The appellant's evidence on the point was as follows:-

"During the course of your work at the hospital was the staff from time to time given instruction in the movement of patients and the lifting of patients? - - - Yes.

Were there periodic lectures given by physiotherapists? - - - Yes.

About how often were such lectures given? - - - I say about - I am sorry, I cannot be real sure on this but about every three months they would have - or sometimes if somebody had hurt their back they would have sort or - - -
Further instruction? - - - Further instructions.

But roughly three months, or more often as occasion demanded? - - - That is right, yes."

Sister Johnson's evidence on the point was as follows:-

"Sister, before the introduction of wardsmen to Allambee? - - - Yes, sir.

Had there been many back injuries among the nursing staff? - - - We started wardsmen in early 1978. Yes, I had heard of a few but I believe we had a lot more even in 1978."

(It seems clear that the first question put to Sister Johnson was, "Sister, before the introduction of wardsmen to Allambee, had there been many back injuries among the nursing staff?" and that she interrupted the question by saying, "Yes, sir".)

"Was not there considerable pressure to introduce the wardsmen for the purpose of assisting nursing staff in the lifting of patients? - - - Yes.

It was quite clear that a male lifter was a more efficient lifter than a female lifter? - - - Ninety nine per cent of the time, yes, sir.

Ideally, heavy patients should be lifted by two male wardsmen? - - - We have never had two -

If they were available? - - - If they were available, yes.

But if you are pressed for staff, you can get away with a male wardsman and a female nurse? - - - That is so, yes.

But the last resort, and the very last resort, and indeed an unsafe resort, is for two nurses to try to lift a heavy patient of a weight of, say, 13 stone? - - - Yes, that we did many times, sir.

But that is a last resort and unsafe? - - - Well, that is why we are pressed for wardsmen, yes."

It was not suggested during the hearing of the appeal, nor does it seem to have been suggested at the trial, that the evidence given by the appellant and Sister Johnson on the point was not to be believed. If the learned trial Judge did not intend in what he said to make a finding of fact there is undisputed evidence upon which this Court in the circumstances can make its own findings. Warren v. Coombes (1979) 142 C.L.R. 531. Although the evidence is slender, it is, I think, enough to support findings of fact in accordance with the underlined passages from his Honour's judgment quoted above. Although she did not say in so many words that back injuries were caused through lifting patients, the appellant's evidence on the point had been immediately preceded by a question concerning the instruction given at Allambee in the movement and lifting of patients and a question which established that periodic lectures were given by physiotherapists. In the context of the questions put to Sister Johnson and her answers it is plain that she was referring to back injuries sustained by nursing staff when lifting or moving patients.

That there was an element of danger in the lifting of patients appeared almost inadvertently from the evidence of Sister Johnson. She was asked:-

"Could I suggest to you, sister, that really the person lifting from the top of the patient keeping a straight spine had the easier lift although it may have been heavier in terms of pounds or kilos?"

and replied,

"Yes, again at the commencement, sir, I agree with that."

She was then asked,

"And throughout the lift, from chair to bed?"

She replied

"No, I always found that it was more difficult after the commencement on that turn. I always found that was the dangerous part. I just did not find - personally I am speaking, I did not find that the leg part of the lift felt as uncomfortable as the turning part of the lift."

Her evidence indicates that she was a strong and competent nursing sister. It is to be noted that she found lifting the upper part of a patient the more difficult.

The appellant agreed in cross-examination that she had received instruction in lifting patients including difficult patients. She also agreed that from January 1973 until about October 1977 there were no wardsmen employed at Allambee so that all the nursing was done by female nurses and nurse aides. She agreed that she had lifted a lot of patients in four and a half years without ever having anything but a slight insignificant pain in her back, pain the existence of which she did not consider to need reporting and which did not cause her to take any time off from work. When wardsman were first employed at Allambee she was told that they were there to help lift patients. I set out part of her subsequent cross-examination:-

"And you were told that if you wanted them to help, to call them or notify someone else? - - - It was stressed to us that we were to use wardsmen for the male and difficult patients. It was stressed, they did not say, go and ring a wardsman; you were told that that was what the wardsmen were there for, for the patients that were difficult and very heavy.

Were there certain patients that were designated only to be lifted with the assistance of a wardsman or not? - - - The sister on duty, she wrote a duty list out for the day and you were not to do things like bath the male patients or something without the help of a wardsman, and it was encouraged and it was something that you were supposed to do.

So you were supposed to lift the heavy and difficult patients with the assistance of a wardsman? - - - Yes.

And it was made perfectly clear to you by your superiors that that was the practice you were to follow? - - - Yes, that was the idea of the wardsmen."

The learned trial Judge found that the method used by the appellant and Nurse Duncombe to lift Mr McDonald was, at the time, the accepted and widely used method, described by Sister Johnson, a very experienced nursing sister, as the standard routine method for lifting patients from chairs or wheelchairs to beds and vice versa. His Honour found that the appellant had used that method during her nursing experience extending back to 1973 and in fact had used the method when lifting Mr McDonald three times in the few minutes preceding her accident. It was, he found, the very method which she had been taught to use to lift patients from chairs to bed. His Honour also found that the lift required was not substantial, a vertical lift of the order of 6-8 inches from the wheelchair positioned right up against the bed into which the appellant and Nurse Duncombe were lifting Mr McDonald.

During the course of his judgment the learned trial Judge said:-

"In my view it is a matter of common knowledge that nursing staff must, as part of their ordinary range of duties, lift patients short distances such as from wheelchair to bed and vice versa. Lifting patients in that way is commonplace in the performance of the functions of their chosen profession. What the plaintiff was required to do on this occasion was within her apparent capacity. She was trained and conditioned by practice. She had been doing this sort of lifting since 1973. If a male wardsman had been available, it is probable that the male wardsman would have lifted from the head end of the patient, as that is the heavier end in such a lift, and the plaintiff would have lifted the patient's legs i.e. in the same way as she was lifting when the accident occurred.

I find therefore that failing to provide a male wardsman at the time when the plaintiff was injured did not unreasonably expose the plaintiff to the risk of injury. There was no unnecessary risk to the plaintiff which the defendant should have realised or foreseen.

In my opinion it has not been shown that, to a nurse aide such as the plaintiff, used to the class of work which she was performing, there was any risk of injury at all, or if there were, that it was an undue risk of injury such as would cause a reasonably prudent employer to take steps to prevent it. In other words there was no foreseeable danger from the lifting of the patient by the method used."

In Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40, Mason J, with whose judgment Stephen and Aickin JJ found themselves in complete agreement, said at pp. 47-48:-

"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone ((1951) A.C. 850), may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The case under appeal is not one where on the evidence there had been no instances of prior injury caused in much the same fashion as was the appellant's. See Quintano v. Cable Makers of Australia Pty. Ltd. (1966) 2 N.S.W.R. 496. On the evidence, scanty though it was, there had been back injuries at Allambee before the appellant's. One may readily conclude from the cross-examination of the appellant by senior counsel for the respondent, quoted above, that the provision of wardsmen was made to avoid risk of back injury to female staff dealing with male, difficult, or very heavy patients.

In Warren v. Coombes, (1979) 142 C.L.R. 531, the High Court considered the task of an appellate court hearing a general appeal not limited, for example, to questions of law but conducted on the transcript of the evidence taken at the trial, witnesses not being called to give their evidence afresh. (See s. 27 of the Federal Court of Australia Act 1976.) The majority of the High Court, Gibbs ACJ (as he then was), Jacobs and Murphy JJ, concluded at p. 551:-

" . . . the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

Their Honours had earlier referred to and quoted from, at pp. 548-550, the judgment of Jacobs J, when President of the Court of Appeal, in Cashman v. Kinnear, (1973) 2 N.S.W.L.R. 495. In the passages quoted by their Honours Jacobs J had said:-

"Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No 'judicial restraint' should lead me, on an appeal to which the statutory provisions of the Law Reform (Miscellaneous Provisions) Act, 1965, apply, to refrain from giving effect to that conclusion of fact to which I finally come. It appears to me, though I speak with some diffidence and with great respect, that the only stage at which 'judicial restraint' can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint, as it has been expressed in many decisions of the House of Lords, the Privy Council and the High Court, I will give great weight to the conclusions of the trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of fact so based faces an almost, but not quite, insuperable task. But even in cases not in the latter category the weight of the trial judge's conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge's view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong." (at pp. 498-499)

"Thus if by judicial restraint is meant a lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is something always to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest where the opinion involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But in truth this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act, 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this Court." (at pp. 499-500)

"I, therefore, return to the facts, conscious that I must reach my own conclusion upon them, but at the same time obliged and willing to give great weight to the conclusions of the trial judge." (at p. 509)

Respectfully bearing in mind the precepts enjoined by Jacobs J, I approach the question of the challenge to the findings of the learned trial Judge with a due measure of diffidence.

I am, nevertheless, unable to see that, when there is evidence that an industrial operation carries with it the risk of injury and that there have in the past been instances of injury attendant upon the operation, such an injury is not foreseeable in the relevant sense. In my respectful opinion, the learned trial Judge failed to take into account either his finding, if he made one, or the evidence concerning past injuries caused during lifting. Had he done so, he must, I think, have made a finding that the appellant's injury was foreseeable.

However, to say that the injury was foreseeable does not necessarily dispose of the appeal. Wyong Shire Council v. Shirt, (1980) 146 C.L.R. 40, makes it plain that "the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty (for) the magnitude of the risk and its degree of probability remain to be considered with other relevant factors". See also Pitsiavas v. John Lysaght (Aust.) Pty. Limited (1962) N.S.W.R. 1500, where at pp. 1501-2 Herron ACJ, in a judgment with which Brereton and Manning JJ concurred, discussed in detail the relevant considerations. An appeal to the High Court by the unsuccessful plaintiff was dismissed ((1963) 36 A.L.J.R. 372) but in its brief unanimous judgment the High Court made no comment on the principles applicable to such cases.

Accepting that it was foreseeable that there was a risk of injury to the appellant's back while she was engaged with another person in lifting a patient like Mr McDonald, it becomes necessary to consider the magnitude of the risk and the means reasonably available to obviate it. The risk which the respondent had to guard against was, in my opinion, a serious one because much experience has shown that back injuries can be totally incapacitating, particularly for those involved in strenuous physical work. A situation had arisen, therefore, where the precautions which the respondent was required to take were thorough precautions. Indeed the inference that the respondent had, in apparent contrast to the general run of employers providing services like those at Allambee, perceived the requirement and therefore employed wardsmen and instructed the nursing staff as to the assistance in lifting patients those wardsmen were to give seems inescapable.

That is not to say that the provision of the assistance of a wardsman may not have been enough. It is difficult to see on the evidence what other precautions could have been taken having regard to the work that had to be carried out at Allambee. But a wardsman or male nurse ought to have been available at all times to assist when heavy, difficult or male patients had to be lifted. Mr McDonald was heavy and difficult and known to be such. The respondent admitted as much in its answer to an interrogatory which was part of the evidence before the learned trial Judge.

Even what I have just said is not the end of the matter since the learned trial Judge made a finding that had a male wardsman been available it was probable that he would have lifted the head end of the patient which he found to be the heavier end in such a lift and that the appellant would have lifted the patient's legs in the same way as she was lifting when the accident occurred. Undoubtedly there was evidence upon which the learned trial Judge could make the finding that the upper portion of a patient's body was the heavier and that had a wardsman been present the appellant would have lifted Mr McDonald's legs, the wardsman lifting his upper part.

I set out the appellant's evidence describing the receipt of her injury:-

" . . . We moved him from the wheelchair to the bed, that is when he really started fighting and it was then, you know, that I sort of - when I was leaning across to try and make the bed and not the floor, that is when I felt my back go. It was like a zipper."

She had earlier been asked three questions which, with their answers, I set out hereunder:-

"And was there any difference in terms of difficulty in moving Mr McDonald with a wardsman as against moving him without a wardsman? - - - Yes.

What was the difference? - - - He just seemed like - when you were with a wardsman the wardsman you know always seemed to manage to make him not such a dead weight.

Did Mr McDonald behave any better when you were being assisted by a wardsman? - - - Yes, because he I think respected the wardsman more than he did respect us."

The evidence just given was not challenged at the trial and there seems to be no reason why it should be rejected. It seems that the phrase "make the bed" in the long answer first quoted above was an elliptical term for "make it to the bed". As I said earlier, the learned trial Judge rejected the appellant's description of the patient as one "throwing his arms around" but did find that Mr McDonald moved in some way.

Scant as the evidence is, it is clear that the lift on which the appellant was engaged at the moment she injured herself was a difficult one made more difficult by the fact that the patient was moving.

It was for that very type of lift, although no doubt for other purposes as well, that provision had been made for the employment of wardsmen. The learned trial Judge did not have to address the question because of the finding he made as to foreseeability. In the view I take it is necessary for me to do so.

It seems to me on the balance of probabilities that the appellant sustained injury because, although normally able to lift patients who were not male, difficult or too heavy, she lifted a difficult, heavy, male patient who compounded the difficulties of the lift by his behaviour in moving, behaviour in which, more probably than not on the unchallenged evidence, he would not have engaged had a wardsman been assisting in lifting him.

In other words, the failure to provide a wardsman resulted in an injury to the appellant which was foreseeable and which ought to have been guarded against by ensuring that a wardsman was available to assist in lifting Mr McDonald from the wheelchair to the bed.

In my opinion the appeal should be allowed and the matter remitted to the Supreme Court of the Australian Capital Territory for consideration of the defence of contributory negligence and the assessment of damages.