McGregor v State of Queensland

[2009] NSWDC 69

CITATION:	McGregor v State of Queensland [2009] NSWDC 69
HEARING DATE(S):	16, 17, 18 and 19 March 2009
JUDGMENT DATE:	22 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the first and second defendants against the plaintiff; parties to be heard on costs before final orders are made.
CATCHWORDS:	TORTS - Personal injury - Transport by ambulance - Admission to Accident and Emergency Department of a hospital with back pain - Transfer by ambulance officers from ambulance stretcher to hospital bed - Alleged fall between stretcher and bed - Claimed injury to shoulders - Negligence of ambulance officers - Vicarious liability of hospital - Material differences in eye witnesses' accounts - Finding that incident did not occur - Improbability of occurrence - Existing injury to shoulders of long standing - Causal relationship to any incident was not established.
LEGISLATION CITED:	Nil
CASES CITED:	Nil
PARTIES:	Brian Duncan McGregor - Plaintiff State of Queensland - First Defendant North Coast Area Health Service - Second Defendant
FILE NUMBER(S):	No 5760 of 2007
COUNSEL:	Mr F Tuscano for Plaintiff Mr K Kelleher for First Defendant Mr S Davis for Second Defendant
SOLICITORS:	Stacks/Goudkamp for Plaintiff Ferguson Lawyers for First Defendant Frances Allpress for Second Defendant

JUDGMENT

1 After arrival by ambulance at the Accident and Emergency Department of a public hospital on 9 July 2006 suffering severe back pain, the patient was wheeled to a cubicle by means of the ambulance stretcher. In the process of being transferred to the hospital bed by the alleged use of a slide, the slide fell between the stretcher and the bed causing the patient’s legs to fall to the floor as he hung by his upper arms and shoulders. Injury to the shoulders was said to have been thereby caused resulting in continuing loss and damage to him. He brought the present action in negligence to recover damages.

2 The employer of the ambulance officers and the hospital took the primary position that the incident as described did not in fact occur; even if something happened, it was not due to their negligence and the patient suffered only a temporary aggravation of a pre-existing shoulder condition. Both liability and damages were denied and the patient’s claims were strenuously resisted.

Factual background

3 The plaintiff, Brian Duncan McGregor, at the time lived in Palm Beach in Queensland with his wife and two children. He was born on 19 May 1951 in Auckland, New Zealand so that at the time of the incident he was 54 years of age and 57 years at the date of trial. He migrated to Australia in 1997. By training, his occupation was as a carpenter and joiner but since April 2006 he had been employed full-time as a handyman doing general maintenance work to houses. The whole of his working life had been doing manual jobs – about 20 years in the building and construction industry on both residential and commercial buildings and, just prior to moving to Australia, for about seven years on his own farm growing tomatoes. He settled in Queensland on the Gold Coast and for nine years was engaged by a real estate agent in house and garden maintenance on a large housing estate of 117 homes until he started the handyman job in April 2006.

4 There were no problems stated by the plaintiff as to his health and working capacity over the years other than a skiing accident approximately 20 years ago in which he injured his right shoulder. After surgical repair he was incapacitated for six weeks, retuned to work on light duties for two weeks and then resumed full duties without any restrictions. Thereafter, up to mid-2006, he said as to his right shoulder “I got the odd occasional sort of discomfort but nothing to stop me from working.” The plaintiff’s wife, Rayma Dawn McGregor, confirmed the skiing accident injury, although she said her husband was off work for only a couple of weeks and then resumed full-time work, with later occasional aches to his right shoulder; she said he made no complaint about his right shoulder in the two-year period before the subject incident in July 2006. Paul Anthony Beetham was a carpenter who worked with the plaintiff for the last two weeks of June 2006 on the handyman work – together they were doing renovation work to a toilet block and office building cutting metal walls, fitting windows and doors, painting and plastering; tools used ranged from power saws to metal cutting grinders and drills. Mr Beetham observed the plaintiff performing the work without any apparent difficulty or discomfort and the plaintiff made no mention of any back or shoulder pain while doing the work.

5 During the afternoon of Friday, 30 June 2006 doing the handyman type work the plaintiff noticed a passing small pain in his back, as he said, “like somebody stuck a needle in.” After work when he got home he had trouble getting out of the motor vehicle because of an ache in his back which he said “felt like a pulled muscle…It was pretty sore. It was getting worse.” The next day the back pain was so bad that the plaintiff could not get his legs out of bed and, so, his wife called an ambulance. Mrs McGregor gave evidence that the plaintiff had told her the day before on returning from work that he had been injured at work and the reason he could not move from the bed was that injury – the plaintiff himself made no mention of this. In any event, and as curiously suggestive as that evidence may have been although not further explained, after being taken to hospital the plaintiff said “I saw a doctor who gave me a shot of morphine…in the stomach for the pain…he said it was a pulled muscle. ‘Walk around for ten minutes, call your wife, she can come and pick you up’…he just gave me a couple of days off work.” At home over the weekend the plaintiff experienced trouble in moving due to lower back pain. He did not attend for work during the following week.

6 On 3 July 2006 the plaintiff consulted Dr Kenneth Hornsby at the Palm Beach Medical Centre because the pain was getting worse, as he said, “in my back and sort of just general – general ache…It was my back, my leg – a little around my shoulders.” On Dr Hornsby’s suggestion the plaintiff was treated by a physiotherapist the next day but he had only one treatment of manipulation and heat therapy which did not help very much. On 8 July 2006, the plaintiff returned to the Palm Beach Medical Centre and saw Dr Paul Balin due to worsened back pain. Dr Balin in the clinical record noted – “Still has pain L/S (lumbar spine), no radiations. As he gets himself up from a chair using his hands/arms, arms/shoulders getting sore.” It may be interposed that on 19 December 2002 the plaintiff consulted Dr Peter Ledwoch at the Christine Street Medical Centre with a diagnosis of back pain and at a further visit on 30 December 2002 Dr Ledwoch diagnosed shoulder pain and prescribed Panadeine Forte tablets.

Alleged incident causing injury

7 On 9 July 2006, the plaintiff said early that evening “we decided we’d better get up to the doctor because I was looking pretty awful…just my colour…sort of yellow…very pale…pain…in my back again.” The plaintiff and his wife attended Dr Kendall Johnston at the Palm Beach Medical Centre about 7.00pm who, because of the yellow skin colour, immediately called an ambulance to take the plaintiff to hospital. An ambulance duly arrived from the Queensland Ambulance Service (operated by the State of Queensland as the first defendant), at about 7.54pm and was recorded as arriving at The Tweed Hospital (operated by the North Coast Area Health Service as the second defendant) just over the State border in New South Wales at about 8.20pm. On admission, the plaintiff was quickly processed through triage within a few minutes and was then wheeled on the ambulance stretcher by two ambulance officers to a cubicle in the Accident and Emergency Department. On arrival in the cubicle he said he heard one of the ambulance officers say to the other – “These things are smaller than the Gold Coast Hospital ones”; the plaintiff looked around and saw, as he said, “what I thought was just a metal slide…about four foot, probably about 18 inched wide…sort of a silvery colour.”

8 The plaintiff was in the cubicle with the two ambulance officers only. What then occurred, as they attempted to transfer him from the ambulance stretcher to the hospital bed, was described by him in this way:

“Then they started to move me across…put the slide on, started to slide me across, and that’s when it fell off. I went down, I put my arms up, one on each side of the ambulance and the hospital trolley or bed, and that’s when I got this really severe pains in my shoulders and neck…they (his feet) were on the ground…they hit the ground…I was just hanging by my two shoulders…Then they lifted me up and put me on the hospital’s bed…And then not long after that, they left.”

9 After about 10 minutes as he waited alone in the cubicle, the plaintiff said he was in pain “everywhere…my back, my shoulders, neck.” He called out for help and, as he said:

“Eventually these two guys came in. I assume they were male nurses or young doctors; I wasn’t sure what they were…I’d told them that I’d fallen between the beds, and then they went away again, then they came back and they gave me a shot of morphine.”

10 There was no mention at all of this event in the hospital record, not even of the injection of a morphine based drug.

Events following incident

11 The plaintiff could not remember much after that but it seems he was taken to a ward. The next morning, Dr I Abdool visited him and the plaintiff said he told Dr Abdool about the fall the day before on admission and that his shoulders and neck were still really sore; he was assured by Dr Abdool that it was referred pain from his back. Of significance, however, there was nothing in Dr Abdool’s notes referring to the fall as being related to the shoulder pain or even any mention of the fall at all. The plaintiff said he waited until the next day to inform his wife. He was not discharged from hospital until 11 August 2006. During the hospitalisation the plaintiff did not feel well from a combination of back, shoulders and neck pain – his back, he thought, was probably getting better but his shoulders were not. Eventually, it turned out to be 19 days later on 28 July 2006, he told Dr Anne Tran, a resident medical officer and a member of Dr Abdool’s medical team, about the incident in the cubicle. Dr Tran recorded in the hospital notes – “Patient now recalls that during ambulance transfer on 9 July 2006, he fell through between the ambulance stretchers for about 30 centimetres not onto bottom, was caught. Arms were abducted at about 30 degrees and both stretchers on either side did hit his shoulders on upward force. Has had pain and restricted movement ever since. Previously had full range of movements of both shoulders.”

12 It is to be noted that apart from “the two guys” and his wife, arguably also Dr Abdool, the plaintiff did not advise any other person in the hospital of the fall in the cubicle on 9 July 2006 until he told Dr Tran on 28 July 2006. It seems that due to the plaintiff’s continuing complaints he underwent an ultrasound of the shoulders, which showed complete full thickness tears of both shoulders, and, in advising the plaintiff on 28 July 2006 of the results of the ultrasound, Dr Tran reported the conversation with him in this way:

“Well I remembered once I had the report going up on to his board for his bed on the ward and I remember standing at the end of the bed looking at Mr McGregor and he was sitting up on the bed at that time and told him the results of the ultrasound, that he had tears on both shoulders, naming the muscles that were involved and then I remembered asking him do you remember what happened to cause this injury. I remember Mr McGregor had a very baffled look on his face and obviously questioning how this injury occurred. I asked him – I remember I was the one who asked him can you think of anything that could cause this and Mr McGregor thought for about – for a short period of time, say five to ten seconds, and said to me no I don’t remember anything that could cause this. At that point I asked him – I tried to help him with the past events to see if there was anything he could think of and I asked do you remember of any particular force that would have happened in order to jolt your arm upwards or when you were fallen down with an upward force. So then he said oh yes I remember this happened and then he started to tell me about the transfer between the ambulance.”

13 Another member of Dr Abdool’s team, Dr McLisky, examined the plaintiff on 23 July 2006 about his right shoulder following x-rays and recorded in the hospital notes – “No obvious fracture/ dislocation. Small bony fragments noted adjacent to the AC joint - ? due to past trauma. No evidence of severe arthritis/effusion.” Dr Tran said she understood the question mark and the reference to trauma to mean “question mark is often written because of uncertainty to the story of whether there was past history of trauma…it appears that possibly Dr McLisky hasn’t delved into the problem or has briefly delved into the problem and is unsure of himself of whether there is a history of previous trauma.” The plaintiff did not tell Dr McLisky during this examination on 23 July 2006, unlike the advice to Dr Tran on 28 July 2006, about the incident in the cubicle a couple of weeks earlier. Indeed, the x-rays Dr McLisky had of the right shoulder were taken by Dr Huynh at the hospital on 22 July 2006 and on the request form Dr Huynh noted that the plaintiff said he had had “pain for years.”

14 The diagnosis of the plaintiff’s back condition was of a severe infection from a parapsoas abscess which was treated with intravenous antibiotics and he took oral antibiotics for three months after discharge from hospital. He said the back got much better and was now “fine, I don’t have a problem at all.” However, because of the condition of his shoulders he was unable to work because, as he said, “I couldn’t lift them (arms) above shoulder height at all, either in front or beside and up sideways, and they haven’t really improved much…still a lot of pain.” In the hospital medical discharge summary dated 11 August 2006, Dr Tran as to the shoulders noted “shoulder movement has been a problem - ? cause. Ultrasound shows bilateral tear…ongoing treatment for shoulder - ? rehabilitation.”

Alternative version of incident

15 The two ambulance officers concerned gave evidence. Craig Bindley had been employed by the Queensland Ambulance Service since 2002; he was a paramedic rostered to work at the Mudgeeraba Station on 9 July 2006. With another officer, Bret Fournier, they were given the job to respond to the call around 7.20pm from the Palm Beach Medical Centre to take Mr McGregor to hospital. Mr Bindley said, other than as to exact times, that he had an independent recollection of the events that day concerning Mr McGregor because he did not normally work from the Mudgeeraba Station and had only attended the medical centre on this one occasion; he had made statements concerning the matter in 2008 and had been asked in 2007 to recall events about it. On arrival at the medical centre, Mr Bindley described the events thus:

“The patient was sitting in the waiting room with a female. I believe it was his wife, I can’t be sure. We’ve received a bit of information from the doctor as to the nature of the injuries and, you know, the condition of the patient which was left shoulder pain and acute back pain. The patient was also jaundiced which the doctor indicated was coming from liver problems…Myself and the patient walked out to the ambulance. My partner had gone out previously to set up the ambulance stretcher at the back of the ambulance which was put into the sitting position which is half height and the back at a 45 degree angle…The patient sat on the bed in that sitting position. We’ve lifted up the bed to full height which is required to load…The patient remained in the sitting position.”

16 On arrival at The Tweed Hospital, at 8.20pm according to the ambulance record, Mr Bindley said:

“We’ve unloaded the patient on the bed from the ambulance…Proceeded into triage where we’ve given the triage nurse a brief snapshot of what the doctor’s given us…”

17 Mr Bindley said the triage nurse obtained some details from him and from the patient, at 8.23pm according to the ambulance record, who was then wheeled into a cubicle in the Accident and Emergency Department. Mr Bindley denied any conversation with Mr Fournier about the size of the slide board and, indeed, he said he did not on that occasion have a slide board to use.

18 Events in the cubicle, according to the record being at 8.30pm, were stated in this way by Mr Bindley:

“…the side of the ambulance stretcher was lowered, there’s two bars either side,…The stretcher’s still at full height in the sitting position…Our stretcher was moved alongside the hospital bed. The brakes on the hospital bed were on. Because the red lever is in the down position which indicates that the brakes on the hospital bed are actually engaged…The hospital bed also was moved up to the sitting position. Myself on the ambulance stretcher side of what was transpiring and Bret Fournier was on the hospital bed at which point we have to apply pressure…I mean we’re actually pressing against, with our thigh, to stop the bed from moving apart during the transfer…The patient wriggled across from our stretcher to the hospital bed…Simply a matter of the patient lifting his bum off the thing, feet across the thing and then simply wriggling across onto the other bed…The patient was quite able to move and there was no reason for me to actually lift the patient. So it’s a simple case of the patient simply getting himself onto the other bed…we simply leave. Our beds taken back out to the ambulance and loaded in.”

19 Mr Bindley repeated that a slide to transfer the plaintiff from the stretcher to the bed was not used. In any case, a patient slide is not made of metal but of a plastic material “the same width of the hospital bed…a bit shorter than the actual hospital bed length.” Mr Bindley denied the plaintiff at any stage during the transfer fell or was dropped between the bed and the stretcher or that he dropped or fell to the floor or that he dropped or fell such that his feet touched the floor.

20 In all of his experience as an ambulance officer, Mr Bindley said he had never seen a stretcher or bed move so that there was a gap between them. He could not in any way see that that could occur because the wheels at the foot end of the stretcher pivot but at the head end they are static and do not pivot at all. Also, Mr Bindley outlined the usual procedure where a patient slide was used as involving at least four people to effect the transfer of the patient from the stretcher to the bed. It required “pushing and pulling…The patient is then rolled onto their side towards me standing on the ambulance stretcher side…The slide is then firmly slid underneath the patient and then the patient is rolled back onto the pat slide and then simply slid across onto the other bed…slide out…pat slides can’t be used while the stretcher is in the sitting position…”

21 The two statements made by Mr Bindley in 2008 were called for by counsel for the plaintiff, produced by the first defendant and counsel had access to them; they were not sought to be tendered into evidence and no direct questions seemingly were put about their contents.

22 The ambulance record indicated the general medical nature of the case as “pain in lower back unknown origin, acute onset 2 weeks ago, nil trauma or injury.” Patient complaints were noted as “Lumbar region, difficulty standing, jaundice” and radiation pain was stated to be to the “left arm, left shoulder” with aggravation on movement. Interestingly, the ambulance report form recorded the plaintiff as presenting with “lower lumbar back pain ? aggravated at work.” There was no record in the report of any incident concerning a fall by Mr McGregor or of his dropping between the stretcher and the bed during the transfer procedure on admission to the hospital; Mr Bindley said the occurrence of such an incident was to be recorded in the ambulance report

23 Mr Fournier had had 16 years’ experience as an ambulance officer in Queensland. At no time during that period had he ever had a patient fall between an ambulance stretcher and a hospital bed on a transfer. As to this particular occasion on 9 July 2006 involving the plaintiff, Mr Fournier had no independent recollection of the matter and was totally reliant on the ambulance records. He did add, however, that if a patient had fallen between a stretcher and a bed “it would have been recorded on the ambulance report form that we fill out and reported to our management.”

24 Again, counsel for the plaintiff called on any statements made by Mr Fournier concerning the subject incident. A statement made by him in February 2008 was produced and access given to counsel but no attempt was made to tender it into evidence or otherwise to deal with its contents.

25 In the circumstances of the incident as the plaintiff alleged occurred here, even though no injury may have apparently been sustained, Mr Fournier said it would have been recorded in the ambulance report as “a minor fall but no injury sustained.” Significantly, Mr Fournier was asked to assume “a patient on an ambulance trolley…to transfer to a hospital trolley…Has severe pain in the back…pain radiates to the left arm and shoulder and the pain is aggravated on movement…unable to get to the ambulance of his own accord…needs the assistance of the ambulance officers to walk him to the ambulance…when you get to the hospital there’s a record of pain of both shoulders…A patient in that condition, I’d suggest to you, you would move using a board if you’re moving him from the trolley to the hospital bed?” He replied “Yes.” However, the evidence here from Mr Bindley as to the plaintiff was not in accordance with all of those assumptions and the plaintiff himself did not go into this detail. For instance, he walked from the medical centre to the ambulance, albeit with Mr Bindley, where he had been waiting in a chair and sat on the ambulance stretcher which had the back raised to the sitting position and so travelled to the hospital; and, also, there was no record of pain to both shoulders only at most to the left shoulder. In any case, Mr Fournier said it would be appropriate to ask the patient how he felt about moving himself from the stretcher to the bed and in large part whether to use a slide board would depend upon what the patient replied and his willingness to move himself. Mr Bindley gave similar evidence as to the appropriate procedure.

26 The triage nurse on duty at the time of the plaintiff’s arrival at the hospital was Noelene Marie Williams and who was the senior of up to 10 other nurses then on duty. She was a registered nurse who had been stationed at The Tweed Hospital since February 1993. Since then, she had always worked in the Accident and Emergency Department first as a registered nurse until 1997, a clinical nurse specialist until 2007 and then to the present time as a clinical nurse educator.

27 Ms Williams did not remember triaging Mr McGregor but agreed from the hospital clinical record that she triaged him as category 3 (out of 5 categories where category 1 is life-saving, category 2 is an emergency, category 4 is acute and category 5 is not acute and not urgent) that is, urgent as someone with strong pain or a possible further deterioration in their condition. She recorded the presenting problem of the plaintiff was “Pain in both shoulders, general aches, recent diagnosis with arthralgia and has now developed jaundice.” The triage time was shown as 8.32pm whereas, perhaps strangely, the ambulance record showed it as 8.23pm – the triage process takes from between three to five minutes, is done by a nurse with no doctor involved and occurs for patients in categories 3, 4 and 5 at the triage station adjacent to the clerical and staff station before allocation to a cubicle; triaging for categories 1 and 2 occurs at the bed space in a cubicle where, for example, oxygen or a cardiac monitor is needed, but otherwise for categories 3, 4 and 5 the triage nurse does not accompany the patient to the bed space. A category 3 patient may wait for up to 30 minutes to see the doctor.

28 Ms Williams explained the protocol for reporting and recording incidents as at July 2006 which occurred in the Accident and Emergency Department, being the Incident Management Monitoring System (IMMS), involving clinical, security risks, complaints and injuries to staff, visitors or patients. She said under IMMS “staff are encouraged and required to report all incidents. We are not to decide that that’s an insignificant incident…So we are required to report all incidents.” As to the alleged occurrence to the plaintiff in the cubicle in falling between the stretcher and the bed, Ms Williams expected that she would have become aware of it as the nurse in-charge at the time. There was nothing recorded in the hospital notes or records to suggest such an event occurred.

29 It is clear that the presenting problem recorded in the triage entry was different to that in the ambulance record in that “pain in both shoulders” was noted rather than “pain in lower back” radiating into the “left shoulder.” Ms Williams said she recorded the position by talking to the ambulance officers and the patient and noted the “chief presenting complaint.” It was, as she said, “a rapid assessment of priority.” She explained as to the discrepancy:

“My suggestion would be that in discussion with the ambulance officers and the discussion with the patient, that the information I gleaned from the patient…would’ve altered the chief complaint. There are many times when what the ambulance say and the patient says to the nurse where they differ.”

Attendant care in hospital

30 The Accident and Emergency Department nursing assessment and observation chart showed that the first entry was at 8.45pm by a nurse, Ms Moore, when the plaintiff complained of “stinging eyes.” Ms Moore administered morphine to him at 9.15pm, he was taken for an x-ray and had further morphine at 9.25pm, an intravenous drip inserted at 10.10pm and Ms Williams put him onto oxygen at 10.40pm. Analgesics were administered and at 12.45am the next morning, 10 July, a further injection of morphine was given. Again, there was no mention of the incident the plaintiff said occurred which, on his and other evidence, must have been noticeably before 9.00pm on 9 July.

31 It appears the plaintiff stayed in the Accident and Emergency Department overnight and received further medication for pain, including injections of morphine. When seen there by Dr Stapledon, the presenting complaint was noted by her as “increased back pain lower back to shoulders” with an onset two weeks earlier. The medical history recorded “looks jaundiced. Hurts to move/walk. Flushed face, tender right posterior hand, neck. Drinks alcohol – homebrew 12 per day.” On transfer to a ward at about 3.30pm on 10 July 2006 under Dr Abdool, the presenting complaint was “jaundice, back pain, shoulder pain.”

32 On 15 July 2006, the hospital completed a substance use history of the patient and it disclosed he had had his last drink before admission on 8 July 2006 when he consumed 10 drinks; he had for years been accustomed to drinking 10 or more standard drinks, said by him in evidence to be 12 homebrews a day, on a typical day. However, nursing notes on 10 July 2006 disclosed the plaintiff said he had not had a drink for three weeks but a later note said the abstinence period was from 6 July 2006.

33 At Dr Stapledon’s first examination of the plaintiff on 9 July 2006 in the Accident and Emergency Department she noted low back pain for one week, jaundiced since the day before, shoulder pain and tender red swelling on right hand and left ankle. There was no mention of the alleged incident in the cubicle earlier that evening or of any complaint by the plaintiff about it. At Dr Abdool’s first examination of him in the ward on 10 July 2006, again back pain for 10 days and shoulder pain was mentioned.

34 Significantly, the nursing notes for 10 July 2006 at 5.45pm recorded concern by the plaintiff about “big red ants crawling in the cupboard”; he was given valium and oxycontin and continued with intravenous fluids; at 6.15pn it was reported he “remains vague and anxious, removing oxygen”; at 7.00pm he was confused as being “in the wrong room” and constantly removing oxygen; and that remained to be the position at 8.00pm. The plaintiff said he usually experienced hallucinations after receiving morphine.

35 Treatment of the plaintiff continued and it is to be seen that the hospital medical and nursing notes during the period noted varying complaints by him of pain and as involving different parts of the body such as back, shoulders, neck, chest, arms, groin, ankle and right hand; sleep disturbance, jaundice, headaches and fever were also recorded from time-to-time. As time went on, pain in the shoulders, particularly the right shoulder, seemed to be a recurring complaint by the plaintiff according to the hospital notes. This culminated, as has been observed earlier, in the examination by Dr Tran on 28 July 2006 as to what the plaintiff then told her and the x-rays by Dr Huynh on 22 July 2006 and the examination by Dr McLisky on 23 July 2006. Treatment then proceeded until his discharge from hospital on 11 August 2006 into the care of Dr Andrew Jones, a consultant physician specialising in infectious diseases, for further treatment for the psoas abscess and Dr Phil Allen, an orthopaedic surgeon, in relation to the problem to the shoulders. Dr Hornsby continued as the plaintiff’s general practitioner.

Subsequent medical attention and assessment

36 After about three months, the plaintiff said the symptoms in his back ceased and, were it not for the continuing shoulder problem which involved a lot of pain, he would have been able to work. However, he did not continue to take medication for the shoulder pain after that first three-month period on discharge from hospital. On a settlement of the back problem, Dr Hornsby referred the patient to an orthopaedic specialist, Dr Michael Tong, who first saw him on 6 November 2006. Dr Tong from the radiological reports noted in his report of 5 December 2006 “massive rotator cuff tears with some atrophy suggesting that these tears have been relatively longstanding.” He added – “I believe that (the plaintiff) has had rotator cuff tears for a long time, however his recent fall has stirred this up.” In a later report of 30 April 2007 Dr Tong said as to the prognosis that it was “guarded regarding return of his shoulder function, as he has such marked wasting of the spinati and massive tears which have been present for some time.”

37 On 10 August 2007, Dr Tong surgically repaired the plaintiff’s left shoulder in The Tweed Hospital. On 13 September 2007, Dr Tong reported an improvement in the plaintiff’s shoulder pain and prescribed physiotherapy. However, on 20 November 2007 the plaintiff complained to Dr Tong that the shoulder pain was much the same as before the surgery. As Dr Tong stated in his report of 20 November 2007:

“I have warned (the plaintiff) again, as I have done previously, that as his rotator cuff had such a massive tear and had been present for such a long time that repair of the rotator cuff may not be successful.”

38 Due to the lack of success in repairing the left shoulder, the plaintiff did not have surgery to the right shoulder. Dr Tong reviewed him on 20 May 2008 but has not seen him since. Indeed, the plaintiff has not had any other treatment for his shoulder problems, other than home exercises, and he has not attended a general practitioner or taken any medication for the pain. At the present time, he said he experiences shoulder pain lifting up his arms and stretching and sometimes is uncomfortable in bed trying to sleep.

39 It may be interposed that the plaintiff had surgery to his wrists about the same time as the shoulder surgery for carpal tunnel syndrome and beforehand, on 10 May 2007, he had an operation by Dr Stephen White, a colorectal surgeon, for bowel cancer.

40 For the purposes of these proceedings, the plaintiff was examined by a consultant surgeon, Dr GG Griffith, on 19 March 2007 and 7 July 2008. Dr Griffith, in a report of 19 November 2007, noted in relation to the alleged incident at the hospital on 9 July 2006 that the plaintiff informed him it “was witnessed by the Ambulance personnel and by orderly personnel in the hospital…medical staff were advised verbally of this incident.” It is true that the plaintiff said he told Dr Abdool of the incident on 10 July 2006, even though no record appeared in the clinical notes, but all other evidence, including that of the plaintiff, was to the effect that the only witnesses to the incident were the two ambulance officers. In any event, Dr Griffith on the basis of the history given by the plaintiff causally related the shoulder problems to the subject incident rather than to the psoas abscess infection or his movement in pushing himself up from a chair. Dr Griffith noted the “long standing chronic over indulgence in alcohol” notwithstanding the plaintiff’s assertion “that prior to injury he had not been consuming excessive amounts.” Dr Griffith was of the following opinion, as set out in his report of 19 November 2007:

“He is quite incapable of undertaking any significant strenuous exertion involving the abduction, protraction and forward flexion of his upper limbs above shoulder level bilaterally unless and until a sound repair of his cuffs is successful. He is therefore precluded in working in his trade for a minimum period of 12 months post-operatively…”

41 Dr Griffith noted also that the plaintiff “has not coped at all well psychologically with manifestations suggestive of a now chronic adjustment disorder with depression and anxiety prominent.”

42 A consultant forensic psychiatrist, Dr Lisa Brown, examined the plaintiff on 9 July 2008. She reported on 17 July 2008 in this way:

“..this plaintiff has probably experienced a part contribution to the development of a mild Major Depressive Disorder in late 2007, as a result of pain and restricted activity secondary to his shoulder injuries.

However, other intercurrent health problems in recent years, including a parapsoas abscess and treatment for bowel cancer in the intercurrent period have been considered as equally significant in offering their own contributions to Mr McGregor’s mood state in recent years. Mr McGregor has undergone a remission on his mood disorder (in early 2008) following treatment with anti-depressant medication.

…

Mr McGregor is therefore unlikely to develop any permanent impairment in his psychological functioning and would not be expected to experience further exacerbations or aggravations of his mood disorder on the basis of his shoulder injuries. His fairly sound underlying personality style and good social supports have probably been important in protecting him from developing more significant psychological problems, despite his multiple health problems in recent years.”

43 Dr David Morgan, an orthopaedic surgeon, was qualified by the first defendant to report on the plaintiff’s condition and he examined the plaintiff on 19 June 2008 for that purpose. In a report of 20 June 2008, Dr Morgan stated a summary of his opinion as follows:

• “Mr McGregor has suffered with severe and long standing maladies referable to both shoulder joints prior to the subject incident which has been alleged to have occurred on the evening of 9 July 2006.
• Even if the accident has occurred, it has not altered the natural history of the underlying disease.
• He exhibits a loss of 16% of the normal functional capacity of the whole person. This loss relates to his antecedent disease and not to the effects of the fall.
• Any future remunerative restrictions relate to his antecedent disease and not to the effects of the fall.
• His recreational capacities have not been altered by this fall.
• This accident has not interfered with his domestic independence.”

44 It is to be observed that in his report, which was detailed and comprehensive, Dr Morgan dealt with a history of the subject incident, injuries sustained, treatment, employment record, educational record, social and recreational activities, past medical history, current symptomatology, clinical examination, radiographic examinations and review of the clinical and nursing notes of The Tweed Hospital. In leading to his opinion, Dr Morgan commented:

“Mr McGregor did give a past history of a significant injury involving the right shoulder joint in a snow-skiing accident occurring some 20 years ago. The injury was of sufficient severity to require operative intervention in Auckland in New Zealand. He denied problems thereafter. He has also given a categorical denial of any form of problem referrable to the left shoulder joint.

I have had an opportunity to review the radiographs performed in November 2006. These films were performed four months following the subject accident. These radiographs are dramatic. They demonstrate severe degenerative arthrosis in a man of relative youthfulness and the changes are of long standing. It is almost inconceivable that Mr McGregor would have been completely unaware of the severity of this disease at a clinical level prior to 9 July 2006.

…

In all probability, both shoulder joints were severely diseased prior to this particular incident. If the incident did occur as described, the force applied would have had the ability to either temporarily exacerbate or alternatively, permanently aggravate his pre-existent underlying shoulder pathology.

It is probable however that the natural history of his pre-existent disease has not been greatly altered. That is to say that the severity of his pre-existent disease was of such magnitude and the tears involving the important structures of the rotator cuff were so extensive that any additional insult or trauma was unlikely to greatly magnify his clinical circumstance.

…

For all of the reasons described above, it is unlikely that the forces which were applied were sufficient to give more than anything more than a temporary exacerbation of his pre-existent underlying problems.”

Domestic circumstances

45 Prior to the subject incident the plaintiff in living with his wife said they shared the household domestic tasks of cleaning, vacuuming, dishwashing and cooking; general housework. Also, he did the gardening, lawn mowing and pool maintenance – both of them worked. At the end of 2008 they separated so that the plaintiff now lives alone in a rented home unit and himself does the housework, as he said, “manage as best I can.” Mrs McGregor did not give any evidence on these domestic task issues.

46 Evidence from occupational therapists in the form of reports was relied upon by all parties. For the defendants, Jenny Wise submitted a report dated 30 September 2008 after consulting the plaintiff on 27 August 2008 and Karen Laverack reported on 28 April 2008 after assessing the plaintiff on 21 April 2008.

47 Ms Wise summarised her views by stating that the plaintiff received personal care assistance from his wife following discharge from hospital for varying periods from about 10 to 15 hours per week until the end of 2007 when it significantly reduced to about 1.0 to 1.5 weekly hours. She said he was now self-caring and performed many domestic tasks independently by using alternative equipment, modified techniques and pacing. Ms Laverack considered the plaintiff independent in all self-care tasks but with some difficulty involving lifting his arms above chest height. Given he had ongoing pain, weakness and reduced movements in both shoulders, Ms Laverack thought he would require future domestic assistance of 6.6 hours per week plus services of a commercial car wash and certain home duties.

Conclusions

48 The primary issue in these proceedings is liability of the defendants. Their defence was that the incident in the cubicle as alleged by the plaintiff did not occur. The only eye-witnesses to the incident were the plaintiff, on the one hand, and the two ambulance officers on the other – their respective versions of the incident cannot stand together; one is right whereas the other is wrong. Apart from that direct evidence there was a not inconsiderable amount of evidence on liability from Mrs McGregor as to what the plaintiff told her the next day about the incident, from the hospital clinical and nursing notes concerning the condition of the plaintiff and the absence of any mention of the incident until 19 days thereafter to Dr Tran, from Ms Williams as to the triage and admission process of the plaintiff, from the ambulance records as to the time events occurred, from the evidence of the plaintiff’s alcohol use and of the effect on him of morphine and from the plaintiff’s complaints about his condition both before and after the incident. Inferences from that evidence were said by the parties’ counsel to support their respective positions.

49 Counsel for the plaintiff emphasised that there was clearly a dramatic change in his condition from the time of his triage and delivery to the cubicle to the examination by Dr Stapledon about 30 minutes later; there was no event, other than the incident described by the plaintiff, which reasonably or plausibly could be identified as a cause of that change. For the defendants, counsel were as one in submitting that the evidence showed many improbabilities and fabrications in the plaintiff’s case such that his evidence ought not be accepted.

50 It is, of course, the position that the plaintiff bears the onus of proving his case to the requisite standard. Viewing the evidence overall, I am far from satisfied that the subject incident occurred as he alleged. Indeed, I am comfortably satisfied that it did not so occur. I find that the events in the cubicle were as described by Mr Bindley and as supported by Mr Fournier who said in his 16 years of experience as an ambulance officer he had not had a patient fall between a stretcher and a bed during the transfer process. In so deciding, I should not be seen to find that the plaintiff deliberately and falsely fabricated the story – I do not consider he did, although he was anxious to find a cause to justify his condition to Dr Tran – rather that due to his then back condition with pain, his alcohol consumption and effects of medication, particularly morphine, he has imagined the occurrence as being one appropriate to be the cause of his shoulder problems.

51 The plaintiff was not a good historian in giving evidence and did so in a vague, uncertain and offhand manner who seemed to give answers with a quick and ready response without much thought. I was not able to be satisfied with the reliability of his answers which seemed to be offered to best suit his case by only a selective recall of events. Against his evidence was the direct evidence of Mr Bindley who I consider gave a logical and straightforward account of the events as he participated in the transfer of the plaintiff from the stretcher to the bed. I did not perceive any reason to cast doubt on his version of the relevant events which, on the plaintiff’s evidence of them, must have been fabricated. I accept Mr Bindley’s evidence, supported as it was by Mr Fournier and as being consistent with the absence in the ambulance and hospital records of any incident occurring to Mr McGregor. I felt no reason to think Mr Bindley was giving untruthful evidence.

52 From the evidence other than the eye-witnesses to the incident, the facts which make the plaintiff’s version improbable may be identified in summary as follows –

(1) The occurrence of such an incident would be extremely unlikely where the transfer from the stretcher to the bed was performed by paramedics who were well-experienced ambulance officers.

(2) An incident of this nature would have to be extremely rare; Mr Fournier had never experienced it in his 16 years as an ambulance officer.

(3) At the time, the plaintiff was given a triage rating of 3, that is, urgent as someone with strong pain and a possible deterioration in condition.

(4) There was no mention in the Accident and Emergency Department notes of the attendance of the “two guys” (males) in response to the plaintiff’s call for help or of the administration to him of morphine.

(5) The ambulance record made no mention of such an incident.

(6) The hospital notes made no mention of such incident, which, if it happened, would have been contrary to the IMMS process.

(7) Ms Williams as the triage nurse and senior nurse on duty at the time in the Accident and Emergency Department was unaware anything of this nature occurred.

(8) The plaintiff failed to mention any such incident to Dr Stapledon and a nurse, Ms Moore, when they attended him in the cubicle about 30 minutes later.

(9) A series of morphine injections to the plaintiff occurred on the evening of 9 July and the morning of 10 July 2006; the plaintiff was accustomed to an hallucinatory reaction to this medication. The hospital nursing notes for the afternoon of 10 July 2006 recorded him as vague, anxious and removing oxygen with a report by him of “big red ants crawling in the cupboard” and confused as being “in the wrong room.”

(10) As time went on in hospital, the plaintiff complained of pain to various parts of his body, including the shoulders, and with headaches and fever.

(11) Consumption of alcohol by the plaintiff over many years at a high level; a substance use history taken on 15 July 2006 showed he had his last drink on 8 July 2006 of 10 beers but nursing notes on 10 July 2006 said he had not had a drink for three weeks and a later note said his last drink was on 6 July 2006. Dr Griffith noted “long standing chronic over indulgence in alcohol.”

(12) The plaintiff experienced shoulder pain, particularly in the right shoulder, over the years since his skiing accident in about 1989, including when lifting himself out of a chair.

(13) The ambulance record as to the plaintiff’s condition pre-admission noted radiated pain to left shoulder and the triage record noted “pain in the shoulders.”

(14) Continuing shoulder pain appeared in the hospital nursing notes but, despite examinations by doctors, the plaintiff made no mention of the alleged fall in the cubicle.

(15) It was not until x-rays and an ultrasound taken of the plaintiff’s shoulders on 22 July 2006 that on 23 July 2006 Dr McLisky saw “small bone fragments” which could be due to past trauma when he examined the plaintiff but the plaintiff still did not refer to the alleged fall in the cubicle.

(16) The bilateral full thickness tears in the plaintiff’s shoulders caused Dr Tran on 28 July 2006 to raise the ultrasound results and, on asking him what happened to cause such injury, she said he looked baffled and then said he could not remember; on pressing him as to any force experienced which could have forced his arms upwards, she said the plaintiff then told her about the subject incident in the cubicle.

(17) The tears in the plaintiff’s shoulders according to Dr Tong were “massive and had been present a long time.”

(18) Dr Morgan thought the radiological evidence of the plaintiff’s shoulders to be “dramatic…severe degenerative arthrosis…of long standing” and that “even if the accident has occurred, it has not altered the natural history of the underlying disease”; the plaintiff would have suffered nothing more than a temporary exacerbation of a pre-existent condition to his shoulders.

53 In the result, it follows, and I so find, that the incident in the cubicle alleged to have occurred on 9 July 2006 as the plaintiff was being transferred by the ambulance officers from the stretcher to the bed did not occur. He did not thereby sustain in the hospital any injury to his shoulders. The defendants were not negligent. Further, the then condition of the plaintiff’s shoulders existed prior to the hospital admission and involved massive tears of long-standing. Even if he suffered some trauma to the shoulders it was only a temporary aggravation which did not affect the natural history of the long-standing condition.

Whether appropriate to assess damages

54 In light of the conclusions reached, it is my view that it is inappropriate to proceed to assess damages as there would be no utility in so doing. Ordinarily, one is able to do so in the event liability be later found, but here if any incident did occur any damage suffered by the plaintiff was, at the most, minimal and temporary in nature where the defendants have successfully shown any injury pre-existed the alleged incident. I will not do so as any damages would be merely nominal.

Orders

55 The first and second defendants are entitled to a verdict against the plaintiff. I will hear the parties on costs before making final orders.

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