Munday v St Vincent's Hospital
[2021] VSCA 170
•17 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0100
| NADIA MUNDAY | Applicant |
| v | |
| ST VINCENT’S HOSPITAL LTD | Respondent |
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| JUDGES: | MAXWELL P, KENNEDY and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 May 2021 |
| DATE OF JUDGMENT: | 17 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 170 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1314 (Judge Tsalamandris) |
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NEGLIGENCE – Causation – Applicant nurse injured using ‘slide board’ to transfer patient from chair to bed – Where respondent failed to provide training in correct use of slide board – Where trial judge found negligence – Whether failure to provide training causative of injury – Sufficiency of evidence – Whether Court can infer cause of injury on basis of common sense – Appeal dismissed – Tabet v Gett (2010) 240 CLR 537; Wodonga Regional Health Service v Hopgood (2012) 37 VR 284; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Lee v Lee (2019) 266 CLR 129; Swain v Waverley Municipal Council (2005) 220 CLR 517; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Ruskin QC with Mr S E Gladman | Shine Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr M J Hooper | Hall & Wilcox |
MAXWELL P
WALKER JA:
Nadia Munday, the applicant in this proceeding, is a nurse who in 2011 was working in the Geriatric Evaluation and Management Unit at St George’s Hospital in Kew. The Hospital was operated by the respondent, which was Ms Munday’s employer. For convenience, we will refer to the respondent as the ‘Hospital’. On 11 September 2011 Ms Munday was required to supervise the transfer of a patient from a commode chair to the patient’s bed. The transfer was to be achieved by the use of a slide board.
The slide board had holes in each end. Ms Munday had not previously seen this particular slide board and had received no training in how to use it. She positioned the slide board under the patient’s buttocks, holding the slide board in her right hand with her right thumb placed down through one of the holes. The patient then moved very quickly and unexpectedly across the slide board, trapping Ms Munday’s right thumb in the hole with the patient’s weight on top of it. Ms Munday had not, to her recollection, given the patient any instruction as to when to move. Ms Munday suffered serious injury to her right thumb.
Ms Munday commenced an action for damages in the County Court, claiming that the Hospital was liable in negligence and for breach of statutory duty. She sought damages for the injury to her right thumb and consequential psychological injury. The claim was dismissed.
Although the judge found that the Hospital had breached its duty of care to Ms Munday, by failing to provide her with any training in relation to the safe use of the slide board, she held that Ms Munday had failed to establish a causal link between the breach and her injury. Because no evidence had been led as to what the training instruction would have involved, her Honour said, she remained ‘uncertain as to whether or not training in the use of the unusual slide board … would have avoided injury to Ms Munday’.
Ms Munday now applies for leave to appeal, relying on a single proposed ground of appeal:
Having found that the respondent negligently failed to provide training to the applicant in the safe use of the slide board she was using when she suffered injury, the trial judge erred in failing to find that the provision of such training would have avoided the injury.
For the reasons that follow, leave to appeal is granted but the appeal is dismissed.
Factual background[1]
[1]Taken from the Court of Appeal Summary.
In late 2010, Ms Munday obtained her nursing degree and then in early 2011 commenced her graduate year with the Hospital. Her first rotation was in the Anaesthetics Department at St Vincent’s Hospital in Fitzroy. In July 2011, she started her second rotation in the Geriatric Evaluation and Management Unit at St George’s Hospital in Kew.
On 11 September 2011, Ms Munday attended alone to an 84-year-old patient, Marjorie, who had to be transferred from a commode chair to her bed. The commode chair was adjacent to the left hand side of the patient’s bed, with the patient facing towards the foot of the bed. The left arm of the commode chair was down, to enable the patient to move across to the bed without obstruction.
At the end of the patient’s bed was a wooden slide board. (The board itself was not in evidence and the trial proceeded on the basis of a photograph of a board said to be similar — see Annexure A to this judgement.) Ms Munday described the board as similar in size to an open lever arch folder. It had holes at both ends. From her description, each hole was approximately 5 cm in length and 1–2 cm in width. As the photograph shows, the holes ran parallel to the ends of the board. Ms Munday said that she had not previously seen this particular slide board and that she had received no training in how to use it. It was similar, but not identical, to a wooden slide board she had seen while working in the Hospital’s Day Procedure Unit.
Ms Munday was to supervise the transfer by the patient using the slide board, not perform the transfer for the patient. She said that the patient ‘had been assessed [and] instructed how to use [the board]. She was to be encouraged to do things herself’. As Ms Munday had explained in her answers to interrogatories, she
wanted to place the board under [the patient] to make a bridge with it between the commode chair and the bed and then once the board was in place, [the patient] could then under her own steam move from the chair to the bed.
Ms Munday positioned the left hand end of the slide board under the patient’s buttocks. When she did so, she was holding the other end of the slide board in her right hand, with her right thumb placed down through the hole at that end of the board. The patient then moved very quickly and unexpectedly across the slide board, causing Ms Munday’s right thumb to be trapped in the hole with the patient’s weight on top of it.
The trial judge’s reasons
The trial judge held that the Hospital knew, or ought to have known, that the particular slide board was unusual and unlike other slide boards in which Ms Munday was trained and experienced; that the Hospital was obliged to train Ms Munday in the safe use of the slide board; and that the Hospital should have foreseen that a nurse will often be so focused on helping and caring for the patient that the nurse will manage, as best they can, with the equipment available to them.[2] As a consequence, the Hospital had a duty to positively ensure that nurses on its ward were trained in the equipment provided.[3] The Hospital had breached this duty, and was negligent for failing to train Ms Munday in the use of the particular slide board.[4]
[2]Munday v St Vincent’s Hospital Ltd [2020] VCC 1314, [73] (‘Reasons’).
[3]Ibid.
[4]Reasons [6].
As noted earlier, the critical issue was that of causation. As her Honour stated, Ms Munday had to satisfy the Court, on the balance of probabilities, that the Hospital’s negligence was a cause of her injury.[5] Her Honour explained further:
The enquiry into the cause of the incident is ’wholly retrospective‘ and seeks to identify what happened and why. That is, what was the probable course of events for Mrs Munday, if the defendant’s negligence had not occurred?[6]
[5]Reasons [80].
[6]Ibid (citations omitted).
As the trial judge observed, no evidence had been led as to what the safe system of transfer ought to have been, and how such measures would have avoided Ms Munday’s injury. Her Honour had raised the causation issue with trial counsel for Ms Munday (who did not appear on this application) during final addresses. She said to counsel that, because there had been no such evidence, she did not
know how this board should have been safely used and how, if there had been the training that you say should have occurred, how would that have made a difference in a causal sense to what happened.
The Hospital submitted before the trial judge that what is, and is not, a practicable alternative system of work or procedure for a nurse is a field of technical knowledge and experience. As no such evidence was adduced at the hearing, the Hospital contended, her Honour could not be satisfied that Ms Munday’s injury would have been avoided.[7] In contrast, Ms Munday submitted that this was not a case that required technical expertise in which she was required to call a nursing expert to testify concerning reasonably practicable alternatives and a safer system of work.[8]
[7]Reasons [85].
[8]Reasons [86].
The trial judge did not accept Ms Munday’s submission on this point. As noted earlier, her Honour said that she remained
uncertain as to whether or not training in the use of the unusual slide board … would have avoided injury to Mrs Munday, which occurred as a consequence of Mrs Munday having her thumb in the board when Marjorie moved unexpectedly.[9]
[9]Reasons [87].
Her Honour recorded in her reasons that there was no evidence before her as to any of the following matters:
• What is the purpose of the holes at each end of the board?
• Where is the board to be placed in relation to the patient?
• How is the board put into position and then secured during the transfer?
• Where should the nurse’s hands be, and in particular, the nurse’s thumb and fingers, whilst the patient is transferring from one surface to another?
• What methods could be adopted to ensure the patient did not move until safe to do so?[10]
[10]Reasons [88].
The trial judge also observed that her acceptance that the Hospital was obliged to train Ms Munday in the safe use of the unusual board was ‘of itself, a recognition that the safe use of the slide board is not common sense. If it was, it logically follows that a qualified nurse would not require specific training in its use.’[11]
[11]Reasons [89].
Her Honour held that, in the absence of evidence to explain what the training instruction would have involved, it was impermissible for her to speculate as to ’how training in the use of the unusual board would have reduced the risk of Marjorie moving unexpectedly and Mrs Munday’s thumb being caught in the board‘.[12] She did not consider that this was a case where it could be inferred ’by evidence or admission, left unexplained, that the injury arose from the defendant’s negligence‘.[13]
[12]Reasons [90].
[13]Ibid, quoting Holloway v McFeeters (1956) 94 CLR 470, 480; [1956] HCA 25.
The judge also recorded her uncertainty about precisely when in the process of the patient transfer the injury had occurred:
I am satisfied that the unusual slide board was a device which was to be used for the task of transferring Marjorie from the commode to her bed. However, without knowing the steps for the task of transferring, it is unclear whether the injury happened in anticipation of the transfer or getting into position to execute the transfer.[14]
[14]Reasons [115].
Causation
The principles relevant to questions of causation in the context of negligence are not in dispute in this matter. As Kiefel J (with whom Hayne and Bell JJ agreed) said in Tabet v Gett:
The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.[15]
[15](2010) 240 CLR 537, 578 [111]; [2010] HCA 12 (emphasis added).
And, as Maxwell P explained in Wodonga Regional Health Service v Hopgood,[16] when a plaintiff alleges a negligent omission:
[T]he causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no such omission.[17]
[16](2012) 37 VR 284; [2012] VSCA 326.
[17]Ibid 292 [31] (citations omitted) (Buchanan JA agreeing at 300 [70], Harper JA agreeing at 300 [71]).
In that context, his Honour explained, the plaintiff’s counterfactual hypothesis must identify:
(a) what the defendant would have done had reasonable care been exercised; and
(b) how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered.[18]
[18]Ibid.
As we have noted, those were precisely the questions which the trial judge raised with counsel for Ms Munday: how would Ms Munday have been trained to use the board; and how would that training have averted the injury to her thumb? The dispute in this Court concerned how those questions were to be answered.
Ms Munday contends that the answers were obvious and required no technical evidence. According to the submission, the training would inevitably have directed a person using the slide board not to put, or keep, their thumb in the hole in the slide board when using or preparing to use the board to effect the transfer of a patient. That inference could be drawn based on ordinary human experience or ’common sense’, and this Court was in as good a position as the trial judge to draw inferences from the evidence.
In contrast, the Hospital contends that the trial judge was correct not to draw such an inference, given that the evidence led at trial did not explain what the training would have involved. It could not be inferred that the training would have involved an instruction that Ms Munday not place her thumb in the board at the relevant point in the transfer, because the evidence simply did not address that. It was possible that placing her thumb in that position could have accorded with the training. Resort to ’common sense‘ could not fill the evidentiary gap.
The drawing of inferences by an appellate court
The principles relating to the drawing of conclusions or inferences from established facts are well known. In short, the inference must be based on evidence, it must be the product of logical deduction rather than speculation, and the party that seeks to establish the inference must demonstrate that the inference is the more probable conclusion to be drawn from the proven facts.[19]
[19]See, eg, Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, [101].
This Court recently explained the role of an appellate court in drawing inferences in Southern Colour (Vic) Pty Ltd v Parr as follows, drawing in particular on Fox v Percy,[20] Robinson Helicopter Co Inc v McDermott (‘Robinson Helicopter’)[21] and Warren v Coombs:[22]
On appeal, the Court is required to undertake a ‘real review’ of the evidence in respect of the findings made by the judge, and the reasons for the judge’s conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is ‘glaringly improbable’ or ‘contrary to compelling inferences’. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it. [23]
[20](2002) 214 CLR 118; [2003] HCA 22.
[21][2016] HCA 22.
[22](1979) 142 CLR 531; [1979] HCA 9.
[23][2017] VSCA 301, [78] (Santamaria, Kaye and Ashley JJA).
This is consistent with the recent consideration of these issues by the High Court in Lee v Lee, where Bell, Gageler, Nettle and Edelman JJ observed as follows:
A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘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’. …
Having rejected the essential planks of the trial judge's reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this ‘very closely balanced’ case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good.[24]
[24](2019) 266 CLR 129, 148–9 [55]–[56]; [2019] HCA 28 (underlined emphasis added) (citations omitted).
In oral argument the Hospital sought to place some weight on the fact that the trial judge heard and saw the plaintiff give evidence. But we do not understand the Hospital’s submission to be that we are in the territory of Robinson Helicopter, where we cannot disturb the trial judge’s finding of fact in the absence of glaring error or a compelling inference. As we understand the Hospital’s submissions, it accepted that it is open for us to draw our own inferences from the evidence.
A matter of common sense?
In some cases common knowledge or common sense is sufficient for a court to be satisfied as to how an injury could have been avoided; whereas in other cases, particularly those involving technical knowledge and experience, the plaintiff must provide evidence as to what the defendant ought to have done.[25]
[25]Greater Shepparton City Council v Clarke (2017) 56 VR 229, 259–60 [108]–[109] (Santamaria, Beach and Kaye JJA); [2017] VSCA 107, referring to Swain v Waverley Municipal Council (2005) 220 CLR 517, 535-6 [44] (McHugh J); [2005] HCA 4 and Neill v NSW Fresh Food and Ice Pty Ltd (1961) 108 CLR 362, 368 (Taylor and Owen JJ); [1963] HCA 4.
As we have said, Ms Munday’s case is that this Court should infer that any training in relation to the use of this particular slide board would have been to the effect that a nurse should not place their finger or thumb in the hole in the slide board when dealing with a patient who will pose a risk of moving so as to squash the finger or thumb. That inference is said to be supported by the following matters:
(a) the fact that there must be a safe way in which the slide board could be used;
(b) the injury that in fact occurred to the applicant’s thumb;
(c) the task that the board is used for, namely placing it under a patient who is then to move across it;
(d) the size and location of the hole in the particular slide board, which was capable of, and in fact led to, the applicant’s thumb being trapped in the hole; and
(e) the context in which the slide board is to be used, in particular that it is used in a geriatric ward to assist patients with physical, and in some cases cognitive, difficulties, who are at risk of moving unexpectedly, which made it foreseeable that a patient may move and trap the nurse’s finger or thumb in the hole — that is, the inherent risk of the activity.
It is simply a matter of common sense, it is said, that ’if you are at risk of a squashing injury by a moving patient … do not put your finger [or your] thumb there.’ Rather, the board should be held without placing a finger or thumb in the hole, so that if there is an unexpected movement by the patient, the nurse can remove their fingers in time to avoid injury. Had training of that kind occurred, Ms Munday submits, the injury to her thumb would have been avoided or reduced.
In argument, the Court explored with counsel for Ms Munday the possibility that the handles on the board were intended to be used to obtain a better grip on the board when putting it into position — as Ms Munday was doing here — preparatory to the beginning of the patient’s movement. On that assumption, the instruction might have been that the finger or thumb should be removed from the hole before the patient began to move onto the board.
Counsel accepted that this was ‘conceivable’, but submitted that it would be a dangerous procedure because patients can move suddenly. Rather, the safer system was said to be, as a matter of common sense, to use the board in such a way that the thumb or finger could not be trapped — that is, by not placing the thumb or finger in the hole in the board. This was said to be so obvious that it was inevitable that any training would have directed the nurse not to put their finger or thumb in the hole.
Resolution
In our view, the judge was correct in declining to draw the inference for which Ms Munday contended, regarding the content of the hypothetical training. Having examined the evidence for ourselves, we would not draw the inference for which Ms Munday contends. What takes this case beyond the realm of common sense is that it was far from self-evident how this board was to be used or, in particular, why the board had a hole at each end.
That being so, it was fatal to Ms Munday’s case that there was no evidence of any of the matters which the judge identified, namely:
(a) the purpose of the holes at each end of the board;
(b) where the board was to be placed in relation to the patient;
(c) how the board was to be put into position and then secured during the transfer;
(d) where the nurse’s hands should be, and in particular, the nurse’s thumb and fingers, whilst the patient was transferring from one surface to another; and
(e) what methods, if any, could be adopted to ensure the patient did not move until safe to do so.
Given those gaps in the evidence, we are, like the trial judge, unable to reach any view about what any training in the use of the particular slide board might have entailed. Although it looks a relatively simple device, a slide board is designed for use by trained nursing or other qualified professionals. In the absence of expert evidence about how such a board is to be used, and in particular about where the nurse’s fingers and thumbs should be placed when using the board, we do not consider that we are in a position to draw an inference on the content of any training that would have been provided had the Hospital discharged its duty of care. Resort to common sense or common knowledge is not, in our view, sufficient in this case. In that regard, we note the following matters.
First, it appeared to be common ground in this Court that the holes at the ends of the board were in fact ‘handles’, to be gripped by insertion of a thumb or finger. What was not agreed, and what remains unclear, was in what circumstances the holes were to be used as handles, and whether there were circumstances in which they were emphatically not to be used as handles. As senior counsel for the Hospital put it, they were handles, but ’for use at what point?’
Secondly, counsel for Ms Munday could give no satisfactory explanation for the presence of the holes in the particular slide board. Counsel suggested that they were for carrying the slide board when it was not in use for the transfer of a patient, but conceded that he did not know. Like him, we do not know. It seems entirely plausible that the handle at one end might be used — just as Ms Munday was using it — to place that end of the board on the bed while putting the other end underneath the patient.
Thirdly, a feature of this case that distinguishes it from the ’dangerous machinery’ cases is that there are two persons whose safety is to be considered in the use of the slide board: the nurse and the patient. If the nurse does not have a secure grip on the board, it is possible that a patient who moves unexpectedly could be injured, potentially with serious consequences. Any training would need to address both aspects of safety — but that is something about which expert evidence would be required. That is in distinct contrast to a case concerning the need to properly guard a dangerous machine to ensure the user does not injure him- or herself.[26]
[26]See, eg, Betts v Whittingslowe (1945) 71 CLR 637; [1945] HCA 31.
In light of that, it is plausible that the training in the use of the particular slide board might have been that in some circumstances the holes were to be used as handles — that is, a finger or thumb placed in the hole — when preparing to use, or using, the board for the transfer of a patient. That might be to steady the board, for the safety of the patient to ensure that the board does not slip when the patient is transferring. And there might be other reasons of which we are not aware.
Fourthly, as the trial judge said, it is difficult to reconcile the ‘common sense’ proposition (that it is so obvious that a person using the board should not put their thumb or finger in the holes of the board that we should infer that training would have been to that effect) with the proposition that training was needed to avoid injury when using the board. If it was indeed so obvious, one might question why Ms Munday — who was trained in the use of other slide boards, which included holes of a similar size and location — needed training in this particular slide board in order to know not to place her thumb in the hole.
Ultimately, there is a line to be drawn between the drawing of an inference and speculation. In this case we consider it would be speculation for us to conclude that training in the use of the particular board would have involved a definitive instruction not to place the user’s thumb or fingers in the holes when using the board with a patient. There are simply too many unknowns, in an area requiring specialist expertise. Ms Munday needed to satisfy us that it was more likely than not that any training would have directed Ms Munday not to place her thumb in the hole in the slide board when using it to transfer a patient, or in preparation for such a transfer. She has not done so.
In light of the above, we would grant leave to appeal but dismiss the appeal.
ANNEXURE A
KENNEDY JA:
I have had the considerable benefit of reading the draft joint reasons for judgment of Maxwell P and Walker JA which helpfully set out the factual background, the trial judge’s reasons, and the relevant authorities. In what follows I adopt their Honours’ definitions and will seek to avoid unnecessary repetition. While I agree that leave to appeal should be granted, I respectfully disagree that the appeal should be dismissed. Rather, I would allow the appeal.
The current application turns on whether the more probable conclusion is that training in the safe use of the slide board would have averted the injury to Ms Munday’s thumb.
The trial judge recorded Ms Munday’s evidence about her injury as follows:
56In her oral evidence, Mrs Munday said she placed the slide board under [the patient’s] bottom and the other part of the board was resting on the bed. Mrs Munday said her right hand was holding the edge of the board, with her right thumb in the hole and her fingers on the outside. Mrs Munday said she could not recall giving [the patient] any instructions to move.
57Mrs Munday said [the patient] came across ‘very quickly’ and the movement was unexpected. As this happened, Mrs Munday’s thumb was caught in the board, with [the patient’s] weight on top. Mrs Munday said she then withdrew her hand.
It was also not disputed that Ms Munday’s thumb was pointed ‘down’ when placed in the hole of the slide board.
The trial judge found that the Hospital was negligent. In so doing she expressly found:
· that the Hospital had an obligation to ensure that Ms Munday was trained ‘in the safe use’ of the (unusual) slide board. This was further to the Hospital’s obligation to provide Ms Munday with a safe system of work;[27]
[27]Reasons [72], [73].
· that the Hospital negligently failed to provide training in the safe use of the slide board;[28] and
· that the injury occurred as a consequence of Ms Munday having her thumb in the slide board when the patient moved unexpectedly.[29]
[28]Reasons [6].
[29]Reasons [87].
There are also findings implicit in the negligence finding. Thus, the trial judge has necessarily found that there was a reasonably foreseeable risk of injury of the kind sustained by Ms Munday from the use of this slide board.[30] Further, her Honour has found that a reasonable person would have provided training in response to that risk of injury.[31]
[30]See Mulligan v Coffs Harbour City Council (2005) 223 CLR 486, 501 [50]; [2005] HCA 63.
[31]Ibid.
A number of preliminary matters are also relatively uncontroversial.
First, notwithstanding the general advantages of the trial judge, the Hospital did not advance any reason why the critical issue of causation cannot be determined based on the uncontested findings of the trial judge. In the result, I consider that this Court is generally in as good a position as the trial judge to decide on the proper inference to be drawn in this case.[32]
[32]See [28]–[29] above; Lee v Lee (2019) 266 CLR 129, 148–9 [55]–[56]; [2019] HCA 28; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301, [78]–[79].
Secondly, insofar as the ‘counterfactual’[33] is concerned, the trial judge has necessarily found that a person exercising reasonable care would have provided training in the safe use of the slide board. The only dispute is whether, as Ms Munday submitted, an inference is to be drawn that such training would have avoided this injury by including a direction not to put the thumb down through the holes of the slide board when using it, or preparing to use it, to transfer a patient.
[33]See [22] above; Wodonga Regional Health Service v Hopgood (2012) 37 VR 284, 292 [31]; [2012] VSCA 326.
A number of matters were raised against the drawing of the relevant inference which do not assist the Hospital.
First, it may be accepted that there is an absence of direct evidence as to a number of matters involving the slide board. This includes the precise use of the holes, as well as the precise scope of the postulated training. However, it is unnecessary to understand all aspects of the use of the slide board, and every aspect of the proposed training in its safe use. The sole issue is whether such training was likely to include a relatively simple instruction not to place the thumb[34] in a particular way so as to avoid trapping and crushing.
[34]Although there was some reference to an instruction regarding the fingers, the focus at the hearing was on training as to the placement of the thumb only, consistent with the fact that the injury suffered was to the thumb.
Secondly, much was made of the possibility that the thumb may need to be placed where it was, in the interests of the patient, to enable secure gripping. However, such a suggestion ignores the fact that, whatever the precise scope of the training, the ‘counterfactual’ hypothesis involved training in the ‘safe use’ of the slide board, further to the obligation to provide a safe system of work for Ms Munday. Any placement of the thumb in the slide board such that it was liable to be trapped and crushed would not be safe.
Thirdly, I do not consider that the need for training in the safe use of the slide board necessarily suggests that the issue of causation cannot be a matter of common sense. Negligence and causation involve distinct analyses. Negligence by a failure to train in a certain subject matter does not mean that the subject matter is so complicated that one cannot readily identify how the accident would have been avoided. This is highlighted in the present case. Given time to think about it, Ms Munday may well have recognised the risk of placing her thumb as she did (whether by application of common sense, or by application of her training in full body slide boards). This would not detract from the trial judge’s finding that there was an obligation to train, taking into account the unusual nature of the slide board.[35] Such a conclusion was, with respect, sound, since employers are not exempted from their duties to provide a safe system of work even if employees might, in theory, be able to lay down a safe system themselves.[36] More significantly, here, the duty to train nurses who may otherwise be so focused on giving care that they may ‘manage, as best they can, with the equipment available to them’[37] does not demonstrate that the training required is ‘technical’ or complicated.
[35]The slide board was also ‘vastly different’ to a full body slide board which Ms Munday said was used by more than two people: Reasons [26], [69].
[36]See General Cleaning Contractors Ltd v Christmas [1953] AC 180, 189–90 (Lord Oakley), 194 (Lord Reid). Contributory negligence remains to be determined if Ms Munday succeeds in this application and the appeal.
[37]Reasons [73].
In turning to the critical issue, it is not necessary to have certainty as to what would be included in training in the safe use of the slide board.[38] Ms Munday need only demonstrate that the inference sought is more probable, on the balance of probabilities.[39]
[38]Tabet v Gett (2010) 240 CLR 537, 578 [111]; [2010] HCA 12.
[39]Ibid.
In considering what, if any, inference is appropriate, the circumstances in which the injury occurred are relevant. The following matters are also significant:
· the inherent use of the slide board involved the movement or transfer of a patient;
· there was no suggestion that the slide board could not be used safely;
· the holes on the slide board were small,[40] and capable of having a thumb caught within them; and
· the context of use was in a geriatric unit, involving a transfer from a commode chair to a bed. This, in turn, meant that a nurse was likely to be transferring patients with physical and/or cognitive difficulties who might move unexpectedly.
[40]The holes on the slide board had a length smaller than Ms Munday’s middle finger, and a width of a bit wider than half her thumb: Transcript of proceeding below, 27 July 2020, 34.22–31.
The evidence highlighted the inherent risk that a thumb might be trapped within the slide board, and then crushed, by a moving patient’s weight. Such risk is also starkly illustrated by the way the injury actually occurred in this particular case. Any training in the safe use of the slide board in connection with a patient would thereby plainly include an instruction not to place the thumb down into one of the small holes so as to avoid the (reasonably foreseeable) injury of the kind suffered in this case. To find otherwise would mean that the training was not in fact training in the ‘safe use’ of the slide board at all. At the very least, the trial judge should have drawn an inference that it was more probable than not, on the balance of probabilities, that the provision of training in the safe use of the slide board would have averted the injury to the thumb.
I am further satisfied that the more probable conclusion does not involve difficult or complex technical matters (as compared with warning systems in a large railway shunting yard,[41] or the practicability of installing an automatic closing door on a train).[42] Rather, the relevant inference arises naturally from common sense given that it is not safe to place a thumb so that it might be trapped and crushed. No expert technical evidence is necessary for this conclusion.[43]
[41]Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339; [1947] HCA 47.
[42]Maloney v Commissioner for Railways (NSW) (1978) 18 ALR 147.
[43]Cf Swain v Waverley Municipal Council (2005) 220 CLR 517, 535-6 [44]; [2005] HCA 4.
I would grant leave to appeal, and allow the appeal. I would further set aside the orders of 31 August 2020, and remit the proceeding for further hearing limited to the issues of quantum and contributory negligence.
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