Metropolitan Health Service Board v Trout
[2001] WASCA 218
•27 JULY 2001
METROPOLITAN HEALTH SERVICE BOARD -v- TROUT [2001] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 218 | |
| THE FULL COURT (WA) | 27/07/2001 | ||
| Case No: | CIV:1503/2001 | 17 MAY 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 17/05/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | METROPOLITAN HEALTH SERVICE BOARD SUSAN ELIZABETH TROUT |
Catchwords: | Negligence Employer and employee Duty of care Safe system of work Hospital Unfitted sheet falling from bean bag and onto floor Mobile intravenous stand caused to topple when moved Plaintiff sustaining injuries as a result Leave to appeal against finding of negligence of employer refused |
Legislation: | Nil |
Case References: | Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Wyong Shire Council v Shirt (1980) 146 CLR 40 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 Liftronic Pty Ltd v Unver [2001] HCA 3 May 2001 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : METROPOLITAN HEALTH SERVICE BOARD -v- TROUT [2001] WASCA 218 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- Applicant (Defendant)
AND
SUSAN ELIZABETH TROUT
Respondent (Plaintiff)
Catchwords:
Negligence - Employer and employee - Duty of care - Safe system of work - Hospital - Unfitted sheet falling from bean bag and onto floor - Mobile intravenous stand caused to topple when moved - Plaintiff sustaining injuries as a result - Leave to appeal against finding of negligence of employer refused
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Representation:
Counsel:
Applicant (Defendant) : Mr J R Ludlow
Respondent (Plaintiff) : Mr S P Paonni
Solicitors:
Applicant (Defendant) : McAuliffe Williams & Partners
Respondent (Plaintiff) : Paul O'Halloran
Case(s) referred to in judgment(s):
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Liftronic Pty Ltd v Unver [2001] HCA 3 May 2001
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J. Generally for the reasons which his Honour gives, I joined in the orders made at the conclusion of the hearing of this application.
2 WALLWORK J: On 17 May 2001 the applicant (defendant) applied for leave to appeal against a decision of a Judge in the District Court which was delivered on 22 March 2001. The decision was concerned with the question of liability for negligence only, and the respondent (plaintiff) succeeded with her claim that an injury to her neck had resulted from a breach of the duty of care owed to her by the applicant employer, arising from her work at the Swan District Hospital. I agreed that the application for leave to appeal should be dismissed. My reasons for that decision are as follows.
3 The respondent had been injured on 10 December 1994 whilst she was assisting a patient to change her position in a bed at the hospital. The patient had been resting on a bean bag on the bed. Over the vinyl bean bag was a small half sized sheet called a draw sheet. It was not fitted or attached to the bean bag.
4 In the course of assisting the patient to move, the respondent had pushed an intravenous trolley closer to the patient to provide some slack for the tube lines coming from the containers on the trolley. As the respondent had moved the intravenous stand, which was a light metal stand with four legs and four wheels, the stand toppled over. The respondent reached out to catch it and did so. However, as she was bent over preventing the stand from hitting the floor she allegedly injured her neck. She later developed cervical, thoracic and lumbar pain for which she received medical treatment.
5 The learned Judge found that after the respondent had righted the stand she had noticed that the draw sheet, which had originally been on the bean bag on the bed, was on the floor. It was in contact with the wheels of the intravenous stand. The respondent had concluded that the draw sheet had wound itself around the wheels of the stand preventing the wheels from moving, so that the stand had toppled over when she had attempted to move it. She had noted this in her accident report. The respondent had called evidence at the trial concerning the forces required to tip the stand over.
6 The learned Judge came to the conclusion that there had been a failure on the part of the applicant to exercise reasonable care for the
(Page 4)
- respondent's safety in having an unfitted draw sheet on the bean bag. His Honour found that because the draw sheet had not been fitted to the bean bag, it was foreseeable that it would fall on to the floor as had occurred. It was also plainly foreseeable that once on the floor, the sheet could obstruct one of the several pieces of mobile equipment in the room, such as the intravenous stand, and so cause an accident.
7 His Honour found that little effort would have been required on the part of the applicant to provide fitted sheets which would have removed the risk. He concluded that the sheet on the ground had caused the stand to topple over when the respondent had attempted to move it and that the accident had resulted from a breach of duty of care by the applicant in failing to use a fitted draw sheet on the bean bag.
8 His Honour did not accept that there had been any negligence on the respondent's part. The respondent had been dealing with a patient in labour and having moved the patient, it had been necessary for the respondent to move the stand to ensure that the intravenous drip lines had some slack in them so that they did not inadvertently come out of the patient's hand. His Honour held that there had been no failure on the respondent's part to exercise reasonable care for her own safety.
9 The applicant claimed that there had been no evidence to support the learned Judge's findings, or as to what the respondent had meant in her pleadings, when she alleged that the accident could have been avoided "by using a fitted draw sheet."
10 Apparently, during the course of the trial, the respondent's counsel had indicated that a fitted sheet was a sheet fitted with "elastic, or stay, or retaining means." The applicant contended that although there had been evidence that the sheet was not fitted to the bean bag, there had been no evidence as to whether there was such a thing as a fitted sheet which could be fitted to a bean bag; whether such a sheet would have eliminated or even substantially reduced the risk, and whether it would have been practicable for the applicant to purchase and maintain fitted sheets for the limited purpose of use with "birthing bean bags", and whether a reasonable person in the position of the applicant would have taken the step of purchasing, using and maintaining fitted sheets for that limited purpose.
11 It was contended for the applicant that the learned Judge had appeared to have assumed that it would have been easy and inexpensive for the applicant to purchase, use and maintain fitted sheets, instead of flat sheets, for the limited purpose of use with birthing bean bags. It was
(Page 5)
- submitted that the practicalities and economics of running a large public hospital system, and purchasing, using and maintaining particular items of equipment in such a system, are not sufficiently within ordinary common knowledge and experience so as to justify the learned Judge's conclusion in the absence of evidence on those issues.
12 It was submitted that if granted leave to appeal the applicant would contend that in relation to a large public hospital system funded by the taxpayers, it might well be thought that the use of fitted sheets in the relevant circumstances, would be an extravagance.
13 It was submitted for the applicant that there had been no evidence to the effect that it would have required little effort on the part of the applicant to provide fitted sheets and that there had been no evidence that fitted sheets on the bean bag would have removed the risk.
14 It was submitted for the applicant that the only evidence that the sheet had not been attached to the bean bag had been from the respondent. It was conceded that it was a possibility that if a sheet was not attached to a bean bag it would slip off. However, it was contended that there was not an obligation on an employer to eliminate all risks of accident; further that there had been no evidence concerning whether a fitted sheet would have led to any different result or would have reduced the risk.
15 It was my opinion that the attaching of the sheet in some way to the bean bag would have reduced the risk because if that had been done, in all probability the sheet would not have been on the floor obstructing the wheels of the intravenous stand.
16 In answer to that proposition it was submitted for the applicant, that had the respondent called evidence as to what type of sheet could have been fitted, or how it should have been fitted, it would have enabled the applicant to consider whether it was practicable in all the circumstances to have that type of equipment in the hospital. It was submitted that the hospital did not really know what steps it should have taken.
17 The applicant's counsel submitted that the decision in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 was authority for the proposition that the mere fact that an air hose came apart from a coupling did not prove negligence on the part of the employer. However, that case can be distinguished from the present one in so far as it is not alleged that any object fell apart in this case. The facts were that a loose sheet which was not attached to the bean bag in any way, fell to the floor and obstructed the trolley.
(Page 6)
18 The applicant also relied on the reasoning of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 where his Honour said:
"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 can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
19 It was submitted that there are limited budgets available to purchase equipment in hospitals and that it could be that the cost of fitted sheets instead of standard sheets would be over and above the level of practicability, bearing in mind the nature of the risk. It was submitted that a Judge might be familiar with the use of sheets in a domestic environment, but he or she should not conclude that the economics and practicabilities of using sheets in a public hospital are the same.
20 The applicant also relied on the reasons of Hayne J in Shellenberg (supra) at par 145, where his Honour said:
"…the appellant's submission could be distilled to a general proposition that if any equipment supplied by an employer for use by an employee fails, it is more probable than not that the employer's negligence was the cause of that failure. I do not accept that this is so, at least in the case of equipment as complex as the equipment he was using when he was injured."
21 The use of the sheet with the bean bag in this case could not in my view be compared to the "complex" equipment which was referred to in the above passage from Shellenberg.
22 In my view it was not shown in this case that the learned Judge had erred in any way in coming to his conclusions. For that reason I concurred in the order of the Court refusing leave for the applicant to appeal.
23 STEYTLER J: I have had the advantage of reading the reasons for decision of Wallwork J. It was essentially for those reasons that I joined in the orders made at the conclusion of the hearing.
(Page 7)
24 It seems to me to have been plain that it was not beyond the means or imagination of a public hospital to attach a sheet to a bean bag so as to avoid the risk which led to the respondent's injury in this case.
25 Like Wallwork J, I consider that this case is entirely distinguishable from that of Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.
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