Murray v Healthscope Limited trading as North West Private

[2000] TASSC 162

[2000] TASSC 162

CITATION:Murray v Healthscope Limited trading as North West Private Hospital  [2000] TASSC 162

PARTIES:  MURRAY, Lynette Mary
  v
  HEALTHSCOPE LIMITED trading as

NORTH WEST PRIVATE HOSPITAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  406/1998
DELIVERED ON:  22 November 2000
DELIVERED AT:  Hobart
HEARING DATES:  9 and 13 October 2000
JUDGMENT OF:  Slicer J

REPRESENTATION:

Counsel:
           Plaintiff:  K E Read
           Defendant:  P L Jackson
Solicitors:
           Plaintiff:  Phillips Taglieri
           Defendant:  Griffits and Jackson

Judgment Number:  [2000] TASSC 162
Number of Paragraphs:  15

Serial No 162/2000
File No 406 of 1998

LYNETTE MARY MURRAY v HEALTHSCOPE LIMITED trading as
NORTH WEST PRIVATE HOSPITAL

REASONS FOR JUDGMENT  SLICER J

22 November 2000

1. The plaintiff commenced proceedings by writ dated 26 February 1998, claiming damages for injuries arising out of a claimed breach of negligence and/or breach of statutory duty arising from a work related accident said to have occurred on 3 January 1995.  The defendant pleaded that the action was barred by virtue of the provisions of the Limitation Act 1974, s5(1), and the Workers Rehabilitation and Compensation Act 1988, s135(1). Both statutes require proceedings to be commenced within three years of the date of the event said to have given rise to injury. The plaintiff seeks an extension of time for the commencement of proceedings until the date of the writ.

1. The plaintiff commenced her employment with the defendant as an auxiliary nurse on 2 July 1990.  On 3 January 1995, she was engaged in the care of an elderly patient at the Ulverstone Hospital, operated by the defendant.  In her affidavit, sworn for the purpose of these proceedings, she states:

"14The private hospital and the respite section were run on a minimum of staff.  There were 15 beds in the respite centre and 12 in the hospital section.  It was usual for there to be two to three persons working during the morning at the respite section.  At lunch time one of these persons would go home leaving one or two persons working at the respite section (the number varied from one to two depending on patient load).

15On 3 January 1994, there were three staff rostered at the hospital for the hospital and the respite centre.  In addition to me Wendy Wing and Sister Roz Hill were present.  Sister Hill was the nurse in charge.  Annexed hereto and marked "A" is a copy of the relevant roster.

16Sister Hill had many calls on her time.  Sister Hill would always help me attend to my duties if she could.  From my training and experience I would never interrupt a nursing sister in the course of a telephone call unless the matter was one of the utmost urgency.

17On 3 January I was called by Mrs Crosswell who was in the day room.  She wanted to go to the toilet.  I was by myself.  Sister Hill was talking on the telephone and Wendy Wing was at lunch.  I was concerned that if I did not get Mrs Crosswell to the toilet she would soil herself, resulting in additional work.  Mrs Crosswell was sitting in a very low arm chair of the type disclosed in the photographs annexed hereto and marked 'B'.  The photograph B1 depicts an elderly patient at the extreme left of the photograph sitting in the chair at the defendant's premises.  I have measured an identical chair.  The chair (without anyone in it) measured 15 inches from the top of the cushion to the floor, at the front of the chair and 12 inches from the top of the cushion to the floor at the back of the chair.

18Before I lifted Mrs Crosswell I placed a wheelchair alongside the chair in which she was seated.  I placed a pivot in front of Mrs Crosswell.  I used a body hug which required me to bend and put my arms under the arms of Mrs Crosswell closely facing her and then lift.  I believe I got Mrs Crosswell to the upright position.  I attempted to turn her to put her in the wheelchair.  As I did Mrs Crosswell became a dead weight and fell to my left.  I attempted to support her but was unsuccessful.  Mrs Crosswell fell back into the arm chair and I felt pain in my back.

19Although there was a mechanical lifting device at the hospital it was not possible for Mrs Crosswell to use it as:

·   two nursing staff were needed to manage it

·   the doorways from the place Mrs Crosswell was at, at the time of my injury to the toilet were too narrow to use the lifter

·   Mrs Crosswell was arthritic and it would have been impossible for her to sue [sic] the lifter."

1. The plaintiff's version of events was challenged in cross-examination, although the defendant did not seek to call contradictory evidence during the course of the hearing of the application.  There were inconsistencies in the various versions of events provided by the plaintiff, although there is little doubt that an event occurred on 3 January 1995 which resulted in a medical consequence.  The main challenge to her account concerned the issue of negligence, in particular the claimed lack of training, the availability of other staff and the capacity of the plaintiff to exercise her own discretion in the performance of her duties.

1. The plaintiff's statement of claim alleges:

"The defendant, its servants and/or agents were negligent and/or committed breaches of agreement in that it, he or they:-

(a)failed to roster a person who was immediately available to provide manual assistance to enable the plaintiff to lift the patient in safety;

(b)failed to provide any or any sufficient manual assistance to enable the plaintiff to lift the patient in safety;

(c)failed to so roster its staff so that two persons were always present and available to lift patients at the hospital;

(d)failed to instruct and/or advise the plaintiff that she should not lift the patient without assistance;

(e)failed to provide any or any suitable lifting device to enable the plaintiff to lift the patient in safety.

[B] Particulars of breaches of statutory duty

The defendant committed breaches of statutory duty in that contrary to Regulation 182A of the Regulations it caused or permitted the plaintiff to undertake manual handling when such manual handling was not undertaken in accordance with the National Standard for Manual Handling published by the National Occupational Health & Safety Commission.

Particulars

(a)The defendant in breach of clause 3.1 of the Standard failed to take all workable steps to make sure that the work practices, namely the lifting of patients, carried out at the hospital, were designed to be as far as workable, safe and without risk to health and safety;

(b)The defendant failed to ensure that manual handling of patients which was likely to be a risk to health and safety was examined and assessed."

1. The claim of the plaintiff insofar as it relates to work practice, methodology and provision of resources was supported by opinion evidence given by Dr John Bisby, an occupational physician well versed in his speciality, who had examined the plaintiff and reviewed her history.

1. The plaintiff has established a prima facie case.  It may be that the critique of the evidence made by the defendant will prove successful at trial, but I am satisfied that there exists an arguable case in negligence and breach of statutory duty (McLean v Tedman (1984) 155 CLR 306, Bus v Sydney County Council (1989) 167 CLR 78).

1. Following the incident with the patient, the plaintiff felt pain in her back and right leg.  She remained at work and on the following day saw a medical practitioner.  She was rostered off work from 5 January and hoped that rest during the intervening period would permit recovery.  On 4 January, she completed an incident report and notified the employer.  She received payment of compensation with respect to her claim.  A rehabilitation provider was appointed and a graduated return to work program arranged.

1. The plaintiff continued to experience pain and discomfort and, on 27 June 1995, consulted a solicitor, Mr Bartlett, who advised her that she had an arguable claim for damages but that she was required to commence proceedings before 3 January 1998.  She decided not to initiate proceedings, believing, on her account, that her condition would improve.  She was not required to continue with active nursing but remained in a clerical position as part of the rehabilitation program.  On 10 October 1997, the plaintiff was advised of the intended closure of the facility and that she would be made redundant.  During the course of negotiations in relation to issues of redundancy and termination, the plaintiff met with another solicitor, Ms Crotty, retained by her union.  She claims to have told that solicitor that she wished to commence proceedings.  There is no dispute that she provided an amount of $185 as security for out-of-pocket expenses.  No writ was lodged by that solicitor.  Following advice from a friend, the plaintiff consulted a third solicitor, Mr Phillips, on 22 January 1998.  On 23 January, he wrote to the previous solicitor requesting the plaintiff's file and seeking confirmation "that a writ has been issued".  At the same time, he caused a search to be made of the court registry and, upon disclosure that no writ had been lodged, wrote to the plaintiff advising that the previous solicitor had told him:

"1       The $135.00 [sic] that you had sent her remained in her trust account.

2        She considered that there was no evidence of negligence.

3She had discussed this with you, had made known to you her views and she says that you accepted that a claim for common law damages would not succeed.

4She claimed that at the discussion you agreed to limit your claim to a claim under Section 71 of the Workers Rehabilitation & Compensation Act 1988."

1. The plaintiff, in her evidence, did not accept such to be the case.  She said that it was her belief that proceedings had been commenced and that when she examined the file after it had been sent to Mr Phillips, she saw "a draft Writ on the file". 

1. It would appear that there had been communication between the defendant's solicitors and Ms Crotty in 1997.  On 16 October 1997, Ms Crotty had written to the defendant's solicitors requesting information as to the amount of the entitlements remaining under the Workers Rehabilitation and Compensation Act, adding:

"We, of course, reserve our client's right to proceed with her Common Law claim for damages but would be interested in determining, whether or not, you are prepared to put a settlement figure on the table."

1. A reply was made by letter dated 6 March 1998, which apparently was not forwarded to Mr Phillips by Ms Crotty, presumably after the delivery of the file delivered earlier.  In that letter, the defendant's solicitors requested, inter alia, the plaintiff to:

" … indicate the basis on which it is asserted your client has grounds for a claim damages at common law …"

1. The writ was issued on 27 February 1998 and served on 9 March.  The defendant had ceased its operations on 31 October 1997, and it would appear that the writ was improperly served because of the change of operations by the defendant.  Default judgment was obtained on 1 April, a defect noticed by Mr Phillips in May of the same year.  In the words of Mr Phillips:

"In about May 1998 I became aware that the Writ had not been properly served.  As a result of pressure of work and other pressures I forgot that the Judgment was invalid and it was not until early February of 1999 as a result of research on another file I again realised that the Judgment was invalid as the Writ had not been properly served.  I then arranged for a concurrent Writ to issue and for it to be properly served."

The writ was renewed on 22 February 1999 and an entry of appearance filed on 18 March.

1. The Court accepts that the plaintiff was not fully appraised of the distinction between a common law and a statutory claim for compensation.  It also accepts that the plaintiff believed the matter to be in hand once she had paid a sum of money for out-of-pocket expenses.  She had some initial expectation that her injury would resolve itself and had a good basis for believing that she could continue in her employment with the hospital and that the rehabilitation process, which included a transfer of duties, would prove productive.  Once the plaintiff had seen Mr Phillips the matter proceeded, apart from the problem with service in an expeditious manner.  The Court is satisfied that an appropriate explanation has been given for delay.

1. The defendant had ceased its operations in October 1997, but no claim is made by it that medical records are no longer available.  Notice of injury had been provided at an early stage and a report made by a supervising officer.  The defendant had made some payments with respect to its statutory obligations and was aware, as of October 1997, of the possibility that a common law action remained an option for the plaintiff.  The existence and whereabouts of two significant witnesses remain known.  There remains prejudice, but not of such a nature as to warrant a refusal of relief.  The writ was lodged some seven weeks after the expiration of the limitation period and was validly served within the 12 month period.

1. The application ought be granted.  The time in which the plaintiff may commence proceedings is extended until 27 February 1998.