Parker v Northern Health (Ruling)
[2024] VCC 237
•5 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-02591
| VICKI PARKER | Plaintiff |
| v | |
| NORTHERN HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2024 | |
DATE OF RULING: | 5 March 2024 | |
CASE MAY BE CITED AS: | Parker v Northern Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 237 | |
RULING
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Subject:EVIDENCE
Catchwords: Relevance – opinion – specialised knowledge – admissibility of expert report
Legislation Cited: Evidence Act 2008; Occupational Health and Safety Act 2004
Cases Cited:Dasreef Pty Limited v Hawchar (2011) 243 CLR 588
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 3) [2012] VSC 99
Ruling: Some portions of the reports ruled inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Pilipasidis SC with M Belmar | Ryan Carlisle Thomas Lawyers |
| For the Defendant | I McDonald KC with D Churilov | Hall & Wilcox |
HER HONOUR:
1The defendant objects to the admissibility of parts of two reports of Louise O’Shea dated 8 February 2024 and 9 February 2024.
2Ms O’Shea is a registered nurse with post-graduate qualifications in occupational health and safety and is the director of O’Shea & Associates, a health and safety consultancy service that specialises in the development and implementation of systematic risk management programs to reduce manual-handling hazards in the workplace, specialising in the health care industry.
3The “O’Shea No Lift System” has been implemented in more than 450 facilities internationally and 95% of state government health care facilities within Victoria.
4She has been specialising in risk management of people handling since 1995 and has provided expert advice and training to a wide variety of health care facilities. She has trained staff in safe people-handling techniques in hospitals, nursing homes and disability services.
5She has consulted to the Ski Search and Rescue Team, Westpac Helicopter Services Newcastle, South Pacific Tyres and Beaurepaires and provided expert advice on manual handling tasks inherent in the workplace. She has been contracted by the Department of Education and Training to develop and implement risk management strategy to reduce musculo skeletal injuries to staff involved in handling physically and intellectually disabled students.
6Section 76 of the Evidence Act 2008 provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
7The exception to that rule is where a person has specialised knowledge based on the person’s training, study or experience.
8I am satisfied that Ms O’Shea has specialised knowledge based on her training, study, and experience, and falls within the exception to the opinion rule under s79 of the Evidence Act 2008.
9In Dasreef Pty Limited v Hawchar (‘Dasreef’),[1] it was held that a two-stage inquiry was required. First, whether the evidence is relevant. Second, whether the person who gives the evidence has specialised knowledge based on the person’s training, study, or experience, and whether the opinion expressed is wholly or substantially based on that knowledge.
[1](2011) 243 CLR 588
10In Dasreef, Heydon J identified the requirements for admissibility of expert opinion. They are:
(a) Is the opinion relevant or of sufficient probative value, bearing in mind the discretion under s135 of the Evidence Act;
(b) Does the witness have properly based specialised knowledge;
(c) Is the opinion propounded wholly or substantially based on the specialised knowledge;
(d) Is the opinion propounded wholly or substantially based on facts assumed or observed that have been, or will be, proved, specifically:
(i)Are the facts and assumptions disclosed?
(ii)Is there evidence admitted or to be admitted capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value?
(iii)Is there a statement of reasoning to show how the facts and assumptions relate to the opinion to reveal how the opinion is based on specialised knowledge?
11It is apparent from the decision of Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd that the evidence capable of proving the facts and assumptions does not necessarily have to be before the Court prior to a finding that the opinion is admissible. Indeed such would often be logistically impossible. A party may expect to discharge that obligation by other evidence proposed to be called.[2]
[2]Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 3) [2012] VSC 99
Report of 8 February 2024
Assumed facts
12Under the heading “Assumed Facts”, Ms O’Shea sets out 62 assumed facts upon which she has based her opinion.
13Ms O’Shea was provided with a number of documents, including answers of both the plaintiff and the defendant to interrogatories and affidavits sworn by the plaintiff.
14By consent the parties agreed to remove references to these documents in the following paragraphs of the “assumed facts” portion of the report: 1, 5, 6, 8, 11, 12, 13, 15, 17, 18, 21 and 24.
15At paragraph 7, by consent the words:
(a) “According to Ms Parker’s Further and Better Particulars of the Statement of Claim dated 10 October 2022”;
(b) “wheelchairs, linen trolleys and oxygen cylinder trolleys. The equipment wheels according to the plaintiff were often sticky and there were different floor surfaces”;
(c) “the heavy fire door”; and
(d) “from a low drawer”
are excised from the report.
16At paragraph 14, the words “The Defendant also stated” and the quotation marks are removed.
17At paragraph 16, the words “According to Q7 in the Defendant’s Answers to Interrogatories of” and the words “dated 27 September 2022” are excised so the sentence reads “The defendant complied with the staffing ratio….”
18At paragraph 24, the words “stated it” are excised.
Comment Section of the Report
Question 3: If you consider the tasks performed by our client were hazardous manual handling, please describe what a reasonable employer in the position of the defendant should have done to have identified and responded to that risk?
19Ms O’Shea was asked at question 2 in the Comment Section of the report whether she considered the work performed by the plaintiff between 22 and 25 August 2017 constituted hazardous manual handling.
20At question 3, Ms O’Shea sets out in, subparts to the question, what steps the reasonable employer would take, which include:
3.1.Identifying manual handling tasks associated with caring for the bariatric patient;
3.2assessing the risk;
3.3identifying appropriate control measures;
and so on.
21It is clear that the subparts to question 3 set out Ms O’Shea’s process of reasoning in relation to question 3.
22Question 3 requires her to consider the steps a reasonable employer would take to respond to “that risk”, being the risk associated with hazardous manual handling.
23Identification of the hazardous manual handling task is the first step in responding to the risk. Under 3.1, Ms O’Shea goes on to identify a number of hazardous manual handling tasks undertaken in bariatric care.
24Ms O’Shea has identified 38 manual handling tasks associated with the care of the bariatric patient. She does not say that these are all tasks that are undertaken at the Northern Hospital, or all tasks undertaken by the plaintiff.
25The defendant submits that it is both causally irrelevant and prejudicial to the defendant to allow a complete list of tasks identified by Ms O’Shea to go before the jury. The jury is likely to be confused or misled by an assumption that these were all tasks undertaken at the hospital or performed by the plaintiff.
26By consent, references to manual-handling tasks identified under the following headings are to be redacted:
(a) Operating theatre
(b) Maternity
(c) Emergency Department
(d) Radiology
27These are all tasks that were either irrelevant to the plaintiff’s duties (maternity, emergency department, operating theatre) or about which there was no evidence (radiology).
28The following tasks are to be redacted from the list of tasks under “General care procedures” on the basis that there was no evidence that the plaintiff was required to undertake these tasks, or that those tasks form any part of her pleaded case:
(a) Inserting an IDC (male/female)
(b) Transferring into a body bag/morgue; procedure following death
(c) Mobilising the unstable bariatric patient
(d) Transfer the bariatric patient out of the chair to floor (emergency)
29In dispute were the following tasks identified by Ms O’Shea and which the defendant submitted did not form part of the plaintiff’s duties on her evidence:
(a) Transfer laterally from bed to bed/table/trolley
(b) Transfer off the floor
(c) Positioning a sling when a bariatric patient is sitting in the chair
(d) Applying and removing pressure stockings
(e) Transfer of bariatric patient to other campuses.
30The defendant submitted that there was no evidence that these tasks formed part of the plaintiff’s duties.
31The patient gave evidence about her experience with and training in manual handling from floor;[3] use of slings;[4] pressure stocking;[5] lateral patient transfers ;[6] and transfer of patients to and from other campuses.[7]
[3]T287, L31; T377, L5
[4]T62, L3-4; T100 L22-23; T101, L2-30; T377, L4
[5]T158, L20-24
[6]T62, L21
[7]T105 L22-31; T118 L14-22; T150 L17-22; T152 L8-9)
32I am satisfied that, on the evidence, these were all tasks that did, or could, form part of the plaintiff’s work.
33They are relevant tasks. I am not persuaded that it is unfairly prejudicial to the defendant for these tasks to go before the jury, or that including these tasks in the report would be liable to mislead or confuse the jury. The jury heard evidence from the plaintiff about her work and training.
Question 4: The adequacy of the defendant’s system of work in place at the time for working with bariatric patients.
34The defendant objected to Ms O’Shea’s answer to question 4 on the basis that it was a conclusory statement and did not disclose any reasoning.
35It is apparent from the structure of Ms O’Shea’s report that Question 4 is the question she was asked and her answer is her conclusion. At sub-paragraphs 4.1 to 4.9 she sets out her reasoning.
36I do not accept the defendant’s submission that this structure is not clear as Ms O’Shea has not used parentheses. It is a sufficiently clear.
37Whether Ms O’Shea is entitled to draw the conclusion based on her reasoning set out in the sub-paragraphs, most of which are objected to, is another question.
38For the reasons set out below I am satisfied that she can.
39To the extent that I have made findings that parts of the report are to be redacted, I am satisfied that they do not preclude Ms O’Shea expressing the opinion and conclusion set out in this paragraph.
4.1 Defendant did not provide staff a consistent definition of bariatric patient.
40Ms O’Shea opines that the defendant did not provide a consistent definition of bariatric patient and sets out the defendant’s policies, frameworks and guidelines which contain varying definitions for bariatric patient.
41The evidence is relevant evidence as the definition of bariatric patient will, or might, impact on whether a task constituted hazardous manual handling, which is relevant to the question of breach of statutory duty pleaded by the plaintiff, as well as negligence.
42The opinion is properly based on Ms O’Shea’s expert knowledge. She is a nurse with occupational health and safety qualifications with many years of experience specialising in manual handling tasks. She is able to assess the policies and determine, based on her expertise, whether the different definitions are consistent or inconsistent, in particular because that assessment is not necessarily a straightforward one. The defendant submitted that this was a question of fact for the jury to determine. However, by way of example, the Manual Handling: Patient (No Lift) guideline dated 22 March 2017 describes a bariatric patient as one whose “weight far exceeds the guidelines; and where body size restricts mobility, health or access to available services”.[8] The Bariatric Patient: Management/equipment guideline dated 7 August 2015 defines the bariatric patient as “weight is 110kg or more: too heavy for stand (sic) equipment, body shape (width at widest point): does not fit standard equipment”.[9]
[8]DCB 37
[9]DCB 98
43An expert such as Ms O’Shea could be expected to know what “weight far exceeds the guidelines” means and whether it is consistent or inconsistent with “weight is 110kg or more”. Similarly Ms O’Shea can opine whether a definition that a particular body weight or shape that is too heavy for or would not fit standard equipment is consistent or inconsistent with a definition based on restrictions to mobility, health or access to services.
44She sets out the different definitions and offers her opinion that they are inconsistent. She has set out her facts and assumptions. The facts and assumptions are capable of being proved by evidence, in the form of the policies and procedures in which the definitions arise.
45Ms O’Shea has not gone into detail as to her statement of reasoning as to why the definitions are inconsistent, but it is tolerably clear from the extracts she has included why she has reached this conclusion – that is, that they provide different weights and different criteria against which to assess a patient. This enables the reader to understand why she has concluded that the definition is not consistent, and this is one part of her statement of reasoning in setting out why she concludes that the defendant did not have an adequate system of work in place at the time for working with bariatric patients.
46The objection is dismissed.
4.2 The weight definition used to describe a bariatric patient should have been >/=100kg.
47The defendant objects to this paragraph on the basis that Ms O’Shea refers to guidelines and a policy which are not identified, and that there is a lack of reasoning in her conclusion.
48I am satisfied that the evidence is relevant. It is this expert’s opinion about a fact in issue, which is whether the tasks the plaintiff was required to undertake constituted hazardous manual handling and what steps the defendant could or should have taken in relation to reducing the risks of those tasks.
49I am satisfied that Ms O’Shea’s experience and expertise qualify her to express an opinion on what an appropriate definition of bariatric patient should be.
50Ms O’Shea says, “from my experience, patients of 100kg are extremely heavy to move using the safe work procedures identified in the defendant’s “No Lift” guidelines”. Given that in her answer to the previous question she identifies the “No Lift” guidelines, I do not accept that the guidelines are unidentified.
51Ms O’Shea then goes on to give her own definition. It is apparent on reading that definition that the “policy” she is referring to is the definition of bariatric patient. Her definition sets out that a bariatric patient is one:
(a) Who exceeds the recommended weight guidelines, and
(b) Whose body size adversely impinges on mobility, use of standard equipment and environmental access.
52However, a patient who does not meet these criteria will still be classed as bariatric if they weigh 100kg or more or have a BMI in excess of 35. Those patients will be subject to the policy of being defined as bariatric, even if, for example, their body size does not impinge on their mobility.
53Similarly, a patient who has a lower weight and BMI might still be classified as bariatric depending on weight distribution, size, height and mobility.
54She discloses her path of reasoning by saying that her personal experience is that patients of more than 100kg are extremely heavy to move using the safe work procedures identified in the defendant’s guidelines. Because she has set out the guidelines used by the defendant already, it is apparent that she is referring to those guidelines and making an assessment, based on relevant training, study and experience that it is “extremely heavy” to move those patients using the procedure in the defendant’s guidelines.
55The objection is dismissed.
4.5 The defendant did not carry out a systematic risk management process on manual handling tasks associated with caring for the bariatric patient.
56Ms O’Shea says that she was not provided with any documented risk assessments on hazardous manual handling associated with the bariatric patient.
57The defendant submits that, just because she was not provided with a document, she is not entitled to draw a conclusion that the defendant did not carry out a risk management assessment. The defendant also says the opinion is based on incorrect assumptions that there were no specific work instructions and that this is contrary to the evidence.
58The defendant says that the jury would be likely to be misled or confused. Further the defendant says that the defendant would be unfairly prejudiced if Ms O’Shea’s opinion in this section was allowed in, particularly as she notes that she identified 38 manual handling tasks associated with the care of the bariatric patient and that the defendant referred to 11 procedures in its Manual Handling guidelines.
59The plaintiff says:
(a) Ms O’Shea was provided with the documents discovered by the defendant. She is entitled to draw the conclusion that, if there is no risk assessment or management process for manual handling, one had not been undertaken. If the defendant wants to challenge her on that it can do so.
(b) She was asked about and gave evidence about the specific work instructions she had received and was asked about the use of slide sheets and slings.
(c) The existence or otherwise of a systematic risk management process on manual handling tasks is a part of the plaintiff’s pleaded case, in that she pleads there was no safe system of work and specifically pleads breaches of those parts of the Occupational Health and SafetyAct 2004 and the regulations as a particular of negligence. Further, the plaintiff pleads as a breach of statutory duty that the defendant failed to carry out identification or risk assessment of tasks involving hazardous manual handling and failed to put risk-control measures in place, reduce the risks, or alter systems of work.
(d) It would be prejudicial to the plaintiff to exclude this evidence as it goes to the heart of her case against the defendant.
60I am satisfied that the opinion is relevant, and that Ms O’Shea is qualified to give this opinion and that it is properly the basis of expert opinion. Ms O’Shea discloses her path of reasoning. I am satisfied that Ms O’Shea is entitled to conclude that the defendant did not carry out a systematic risk management process because, as she sets out, she has not been provided with any documented risk assessments on hazardous manual handling associated with bariatric patients.
61I am satisfied that there is evidence capable of proving Ms O’Shea’s conclusions as it accords with the plaintiff’s evidence and the documentary evidence.
62If the defendant proposes to call evidence that such risk assessments had in fact been undertaken, a question will arise as to why those risk assessments have not been discovered. Alternatively, if those risks assessments were undertaken but not documented, the defendant must call evidence to that effect and can put that to Ms O’Shea.
63I do not accept that the assumption on which Ms O’Shea has based part of her opinion – that there were no specific work instructions – is contrary to the evidence. The plaintiff accepted that she had undergone training. I do not accept that training and work instructions are the same thing, and it appears that Ms O’Shea does not consider them the same thing. She sets out, under “assumed facts” the training the plaintiff has received so she is clearly aware of it.
64I accept, however, that the reference to Ms O’Shea having identified “more than 38” manual handling tasks would be prejudicial to the defendant or would tend to mislead the jury. I do not accept that redacting the sentence “In my answer to Q3 I identified more than 38 manual handling tasks associated with the care of the bariatric patient” does not remove the vice. Ms O’Shea has already set out that she was not provided with any documented risk assessments on hazardous manual handling for the bariatric patient, and on this basis she concludes that there was not a systematic risk management process.
65The fact that she identified 38 manual handling tasks is not necessary for her to have reached this conclusion. That sentence “In my answer to Q3 I identified more than 38 manual handling tasks associated with the care of the bariatric patient” is to be redacted pursuant to s135 of the Evidence Act 2008. The objection is otherwise dismissed.
4.6 The defendant did not provide appropriate or adequate equipment for caring for bariatric patients.
66Ms O’Shea sets out the equipment list with which she has been provided and the items on it. She then opines that a risk assessment of the suitability of that equipment was not carried out by the defendant and says some of the equipment is not appropriate. She notes that the guideline did not identify equipment to assist in “on bed” care.
67The defendant objects to the entirety of this part on the basis that there was no evidence that there was an equipment failure or that other equipment should or could have been provided that would have avoided the injury.
68The plaintiff says that this goes to the overall impression that the defendant did not provide a safe workplace and that it is within Ms O’Shea’s expertise to comment on what equipment was available.
69The difficulty with this part is that Ms O’Shea provides an opinion that much of the equipment is not suitable. However, there is no evidence that unsuitable equipment was causative of the plaintiff’s injury, not is it pleaded that the equipment provided was not suitable.
70Ms O’Shea then goes on to mention other equipment that has not been identified in the guideline but does not disclose any path of reasoning about how or why that equipment could or would have assisted the plaintiff in her duties.
71The objection is upheld and all of 4.6 is to be redacted.
4.7 The defendant did not have a clear policy/procedure or guideline for managing the risk associated with the manual handling of bariatric patients.
72The defendant objects to this on the basis that:
(a) The first paragraph is not an expert opinion;
(b) The second paragraph is a question of fact for the jury;
(c) The third paragraph is not based on any specialised knowledge.
73The plaintiff says the evidence:
(a) Arises directly from Ms O’Shea’s experience and expertise;
(b) Deals directly with an aspect of the defendant’s claim of contributory negligence against the plaintiff in which it is alleged that, if assistance was required, the plaintiff failed to seek assistance.
74Ms O’Shea sets out her reasoning for the conclusion she reaches by saying that there was no clear policy or procedure for managing risk associated with bariatric patients because:
(a) The policy/procedure was spread over a number of documents;
(b) Those documents pushed the responsibility onto the local nurse, unit manager or shift manager to carry out on-the-spot risk management such as risk assessment, sourcing appropriate equipment, staff numbers and so on;
75This was inadequate because an adequate system should provide the shift manager with a risk assessment tool that directs staff to work instructions or correct techniques, appropriate equipment and recommended staff numbers.
76Not every sentence of an expert opinion must be, or can be, an expression of opinion. It is necessary for an expert to set out matters upon which conclusions can be reached.
77In this case, Ms O’Shea sets out that the policies and procedures are spread over a number of documents. That is not an expert opinion, but is not inadmissible. It is relevant to the conclusion she draws.
78She then provides an opinion as to what those policies and procedures do – they push the responsibility onto the nurse unit or shift manager. It is a matter for the jury as to whether it accepts Ms O’Shea’s characterisation of those policies, but I do not accept that her interpretation of how those policies function in a real-world setting such as a hospital is not based on her specialised knowledge. Similarly, it is clearly an exercise of her specialised knowledge as to how an adequate system of work would operate in terms of providing risk assessment tools and work instructions.
79She discloses her path of reasoning by explaining that her interpretation of the policies is that they push responsibility onto the nurse unit or shift manager and explains why she considers this is inadequate.
80The objection is dismissed.
4.8 The defendant did not provide adequate training or training resources and other documentation including bariatric patient risk assessment/control tools.
81The defendant objects to this on the basis that it is based on erroneous assumptions,[10] that are different from the assumed facts set out in the report and contrary to the plaintiff’s evidence. This in turn is said to offend against the principles enunciated in Dasreef, that there must be evidence admitted or capable of being admitted that proves matters sufficiently similar to the assumptions made by the expert to render the opinion of value.
[10] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No.3) (supra)
82In particular the defendant submits that the plaintiff’s evidence was that she had received training, and that Ms O’Shea’s reasoning that the only training was “basically not relevant to the manual handling needs of the bariatric patient” is not supported by the evidence.
83The plaintiff said she had no specific training in dealing with bariatric patients other than a part where she was shown a sling to use for bigger patients.[11] She conceded that she did not recall all the training and that her memory was poor. She said she had patient manual handling training,[12]and that bariatric training “was touched on”..[13]
[11]T61 L31 – T62 L1; T70 L18-29
[12]T286, L17-19, L28-30
[13]T287, L17-18
84I do not accept that the evidence is incapable of proving the facts and assumptions upon which Ms O’Shea’s opinion is based. An acknowledgement that training had “touched on” bariatric patients is sufficiently similar to the assumption that the training provided was “basically not relevant to the manual handling needs of the bariatric patient”.
85The opinion is relevant, it is based on Ms O’Shea’s expertise, it sets out her facts and assumptions and provides her statement of reasoning. There is no basis to exclude it pursuant to s135.
86The objection is dismissed.
4.9 The defendant did not have an adequate system to capture critical data about the number of bariatric patients, size and shape of the patient and their specific needs.
87The defendant objects to this on the basis that Ms O’Shea’s opinion is based on an answer to an interrogatory of the plaintiff that was given under objection and may be inadmissible if that objection is well taken.
88Interrogatory 5 asked the defendant whether the plaintiff had been instructed or directed to undertake work including linen changes, assisting patients with Activities of Daily Living, assessment of skin integrity, assisting patients with toileting and rolling, washing and changing pads on patients in or around August 2017.[14] Interrogatory 6 asked, if the answer was yes to any part of interrogatory 5, for the defendant to:
(a) provide the “usual particulars” of the direction or instruction;
(b) whether the plaintiff worked with any bariatric patients; and,
(c) if so, how many in or around August 2017.[15]
[14]PCB 35
[15]PCB 35-36
89The defendant took objection to interrogatory 5 on the basis that it was unclear, vague, and too wide because it does not refer to a specific time period or date. Then, under cover of that objection, the defendant provided a response.
90In response to interrogatory six the defendant repeated its objection to interrogatory 6 (sic, presumably it intended to say 5) and under cover of that objection answered that the plaintiff was trained with respect to the tasks identified in the previous answer. To the second part of that interrogatory the defendant answered that it was unable to say how many bariatric patients the plaintiff attended to in August 2017.
91Ms O’Shea notes this answer in her report. She notes a reference to a database that allows for a bariatric alert and provides her opinion on that system.
92The defendant objects to that opinion on the basis that:
(a) It arises in part from an answer to an interrogatory that was given under cover of objection;
(b) The interrogatory did not inquire about the shape, size or weight of bariatric patients;
(c) It does not relate to any causally relevant fact in issue;
(d) There is no evidence that the plaintiff’s injury developed as a result of the voluntary nature of the system;
(e) There is no evidence that there was any problem with the system.
93The plaintiff says that the opinion is relevant to the question of whether the defendant provided a safe system of work, and that, to the extent that the answer to the interrogatory was given under objection, it was a general sort of objection and the plaintiff will be seeking to tender the answer.
94I am not persuaded that Ms O’Shea is precluded from providing an opinion based on the answer to interrogatory 6. If I am wrong about that I will hear argument and make a ruling on the interrogatory and answer and revisit these reasons.
95I am satisfied that Ms O’Shea’s opinion about the system for capturing data about the number of bariatric patients is relevant to the question in issue. It is clear that part of the plaintiff’s case is that she was required to look after two bariatric patients in the week leading up to 25 August 2017 and that this was a heavy workload that caused her to be aching after her shift.
96However, I accept the defendant’s objection that it is no part of her case that there was a failure of the database system that resulted in her injury. The information about the database is likely to confuse the jury by suggesting that some other system of recording the information could have prevented the plaintiff’s injury when there is no evidence, nor am I persuaded of the prospect of any such evidence being given, that the system was not complied with or was otherwise causative of the plaintiff’s injury.
97The words “size and shape of the patients and their specific needs” are to be redacted from the conclusion at 4.9; the entire paragraph “There is reference to entering information….no idea if the data is correct or not” is to be redacted and the words “their weight and shape…and other key factors” are to be redacted from the last sentence.
Question 5: The applicability of the defendant’s ‘no lift policy’ and the extent to which there was compliance with this policy in dealing with bariatric patients.
98The defendant objects to Ms O’Shea’s response to this question on the basis that:
(a) The part of that opinion where she opines that:
“it did not identify hazardous manual handling tasks, carry out systematic risk assessment or implement appropriate controls”
are questions of fact for the jury.
(b) There is no evidence that the change in weight for the definition of a bariatric patient was communicated to the plaintiff;
(c) The statement that the defendant did not provide specific safe operating procedures or work instructions was contrary to the plaintiff’s evidence;
(d) The conclusion that the defendant did not provide any training in specific bariatric procedures or work instructions in relation to manual handling is incorrect and contrary to the facts and assumptions.
99The defendant says the entirety of Ms O’Shea’s answer to this question is inadmissible.
100For reasons already outlined, I am not persuaded that training is the same as work instructions or operating procedures. As outlined above, I am not persuaded that training that “touched on” bariatric manual handling is not sufficiently similar to the facts and assumptions that the defendant did not provide specific bariatric procedure training.
101Ms O’Shea is required to set out the facts and assumptions upon which she bases her reasoning. She does this. The jury might reach an different finding on those facts and assumptions but this does not preclude Ms O’Shea from providing her opinion about them.
102The objection is dismissed.
Question 7: The nature of equipment available for the use in caring for bariatric patients in particular having regard to any mechanical equipment such as hoists, slide sheets and any other suitable equipment.
103For the reasons set out in relation to 4.6 I accept that this section is inadmissible.
104The section is redacted.
Question 8: The Adequacy of Staffing Levels
105By consent the parties agreed to redact the references to answers to interrogatories and the sentence beginning “This Act however…. care of the bariatric patient”.
106The defendant objects to Ms O’Shea’s conclusion that the procedures or work instructions in the guidelines are relevant for non-bariatric patients on the basis that it does not utilise her specialised knowledge and does not disclose a statement of reasoning.
107The defendant submits that the entire answer to question 8 ought to be redacted save for the final paragraph. The defendant submits that the final sentence of the final paragraph in which Ms O’Shea concludes “In my opinion the Defendant did not do this” ought to be redacted on the basis that, even if it were admissible, it is unfairly prejudicial and ought to be excluded under s135.
108In her report, Ms O’Shea says she cannot say whether there were adequate staffing levels because she has not been provided with any work instructions for bariatric patients that identify the number of staff required to do the task.
109She notes the plaintiff’s evidence that she could not recall any change to ratios even when the work was extremely heavy and the defendant’s evidence that it complied with staffing ratios prescribed by legislation.
110She says her opinion is that the work instructions in the guidelines are relevant for non-bariatric patients.
111Her evidence in relation to staffing levels is relevant evidence. The plaintiff pleads the defendant breached its duty by failing to provide sufficient manual assistance. The plaintiff gave evidence that she was required to do tasks by herself. It was squarely put to her in cross-examination that if she had any difficulty with a task she could ask for assistance, and that the “buddy system” meant that her buddy was available to assist. The plaintiff’s evidence was that she could ask for assistance where a task was designated “two assist” but not “one assist” as she was expected to complete that task by herself.
112Ms O’Shea has specialised expertise in determining whether the Manual Handling Guidelines are relevant for non-bariatric patients or bariatric patients. She is able to opine from her experience and expertise whether the requirement that a shift manager ensure adequate staff numbers does or does not represent a systematic approach to risk management and does or does not minimise the potential for manual handling injuries.
113As is acknowledged, she is entitled to set out her opinion as to what the responsibilities of the defendant were in relation to staff numbers. She is entitled to express her opinion as to whether the defendant fulfilled or did not fulfil those responsibilities based on the facts and assumptions she has set out.
114The objection is dismissed.
Question 9: The adequacy of staff training in dealing with bariatric patients.
115The defendant objects to the second paragraph on the basis that Ms O’Shea’s conclusion – that the defendant’s training of staff with bariatric patients was not adequate – is not admissible because she reaches that conclusion on the basis that she has not been provided with any specific bariatric training manual or documentation.
116For the reasons set out above, I am satisfied she is entitled to reach that conclusion based on the documents with which she has been provided, which come from the defendant’s discovered material.
117The objection is dismissed.
Question 10: What system was in place for identifying the person responsible for enforcing any policies/procedures for dealing with bariatric patients.
118The defendant submits that the answer to this question is inadmissible as it does not demonstrate the exercise of any specialised knowledge or any opinion.
119The question requires identification by Ms O’Shea of the system in place for identifying the person responsible for policies.
120She has considered the policies and identified the people responsible for undertaking various aspects of those policies. Different people are responsible for different aspects of the policies. For example, the Safety-First team provides support to manage the risk but the Line Managers and Supervisors are responsible for controlling the risks associated with the work they supervise. The Shift Manager is the person responsible for ensuring that a risk assessment was completed and appropriate equipment sourced.
121The system that is in place for identifying responsible persons for enforcing the policy and procedure for bariatric patients is relevant to whether there is a safe system of work in place.
122The answer to this question – what system was in place, has to be read in the context of the next question, which is whether that system was inadequate and, if so, what system should have been in place.
123The evidence is relevant and arises from her expertise and experience. She is able to identify from the policies which responsibilities attach to which role.
124The facts upon which she bases her opinion are set out.
125The objection is dismissed.
Question 11: If the system for identifying the person responsible for enforcing any policies/procedures for dealing with bariatric patients was inadequate at the time, what system should have been in place.
126The defendant submits that the answer to this question does not demonstrate any specialised knowledge and Ms O’Shea is not exercising an expert opinion but is merely stating a fact – that a system of work cannot be enforced if it is not available or in place.
127Her opinion, however, goes beyond that. She makes a finding that the system was inadequate because, although it was appropriate for Line Managers and Shift Supervisors to enforce the policy, they need clear, objective information about what they are actually enforcing. It is clear from her responses in other parts of her report that the clear, objective information is not, in her opinion, in existence.
128She then goes on to say that clear work instructions require identification of the least risky technique to carry out the task, the specific equipment, the number of staff, and the space required, as well as any other relevant information.
129She sets out at question 10 what facts she relies on to determine what system was in place. There is evidence capable of proving those facts, being the guidelines and manuals.
130She identifies, using her experience and expertise, what parts of that system are appropriate – the responsible line managers and shift supervisors to ensure the risk assessment is undertaken. She identifies what parts are inappropriate – the lack of objective direct information about what they are enforcing. She identifies the requirements for an adequate system.
131These are all matters within her expertise. She sets out her reasoning.
132The objection is dismissed.
Report of 9 February 2024
133By consent the parties agreed to remove references to the OHS Act 2004 and the Code of Practice for Manual Handling 2000.
134The plaintiff agreed to clarify the date of the discharge summary referred to at the top of page 2 of the report.
135The defendant objects to the paragraph beginning “It is easily recognised the manual handling risks….forward flexion while applying force” on the basis that this goes outside Ms O’Shea’s specialised knowledge as a nurse.
136I do not agree. I think it is well within the expertise of a nurse with Ms O’Shea’s qualifications and experience, particularly in assessing manual handling tasks and undertaking risk assessments, to express this opinion. The objection is dismissed.
137The defendant objects to the inclusion of the photograph on the basis that it is likely to mislead the jury. The plaintiff says the photograph is similar to photographs and diagrams that are included in the defendant’s policies and guidelines.
138I accept the defendant’s submission. The inclusion of a photograph in an expert report has the potential to be considered differently by a jury than a similar photograph in a policy which is generic by nature. It is unclear what the photograph purports to show. The red line illustrates a distance which is entirely variable and is of no probative value. The photograph must be removed.
139As a consequence of that photograph being removed, the paragraph under the photograph must also be redacted.
140The following paragraph is within Ms O’Shea’s expertise and can stay.
141The final paragraph on the second page of the report which starts “Northern Health knew the risk” must be redacted. I accept the defendant’s submission that it speculates about the state of mind of the defendant and puts forward a basis for changing the policy which is not the subject of evidence and which I am not persuaded is likely to be the subject of any evidence.
142The extract from the new policy on page 3 should be removed, as should the extract from the Victorian Code of Practice on page 4 on the basis that it has no relevance.
143On page 5 the defendant objects to the paragraph that begins “Trying to pull clothing out from underneath a large patient…while in the position below” ought to be excised because it does not accord with the plaintiff’s description of the tasks that she was undertaking.
144I do not accept this submission. Pulling clothing out from underneath a patient is sufficiently similar to the tasks the patient was doing with Patient A and Patient B that it does not fall foul of the requirement that the opinion be based on facts and assumptions that can be proven on the evidence. However the final words “while in the position below” refer to the photograph and must be redacted. The photograph should also be redacted for the reasons above.
145The defendant objects to the final paragraph on page 5 on the basis that it does not accord with the plaintiff’s evidence. I disagree. It accords with the plaintiff’s evidence about pulling up underwear while in an awkward position with Patient B, and the expert opinion about the usefulness of adaptive clothing is within Ms O’Shea’s area of expertise and experience.
146The defendant objects to the final sentence of the second paragraph on page 6 on the basis that it is unfairly prejudicial and ought to be excluded under s135. This is Ms O’Shea’s conclusion as to what the defendant should have done and her conclusion that the defendant did not do these things.
147It is an expression of opinion based on the facts and assumptions she sets out, and is within her experience and expertise. She is being asked for an opinion which she provides. I do not accept that it is unfairly prejudicial.
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