Smith, Penny v Tamar Park Pty Ltd

[1998] TASSC 52

52/1998

PARTIES:  SMITH, Penny
  v
  TAMAR PARK PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  23/1996
DELIVERED:  6 May 1998
HEARING DATE/S:  27, 28 April 1998
JUDGMENT OF:  Wright J

CATCHWORDS:

Employment law - The Contract of Service - Rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Safe system of work - Extended care assistant injuring back whilst lifting disabled but aggressive patient from toilet - Whether nursing home negligent in not providing sufficient carers or a mechanical hoist for transferring patients or in failing to issue suitable instructions as to risk of injury in dealing with patients - Whether Extended care assistant guilty of contributory negligence.

Sroka v Ridge Park (1981) 28 SASR 15; Knight v Tassal Limited B34/1993, applied.

Aust Dig Employment Law [32]

REPRESENTATION:

Counsel:
             Plaintiff:  C N Dockray
             Defendant:  P L Jackson
Solicitors:
             Plaintiff:  C N Dockray
             Defendant:  Griffits and Jackson

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  52/1998
Number of pages:  9

Serial No 52/1998
File No 23/1996

PENNY SMITH v TAMAR PARK PTY LTD

REASONS FOR JUDGMENT  WRIGHT J

6 May 1998

The plaintiff is a thirty-eight year old extended care assistant ("ECA") employed by Tamar Park Pty Ltd, a company which operates a nursing home formerly known as Cosgrove Park in Launceston.  The plaintiff had limited education and left school at the age of fourteen years.  She obtained employment as a nurse's aide (the descriptive name by which ECA's were known some years ago) at the Eskleigh Memorial Hospital at Perth, caring for mentally and physically disabled patients and also geriatric inmates.

Since that time she has worked in a similar capacity at various establishments in Northern Tasmania.  In 1984 she was employed by the defendant company and worked as an ECA at Cosgrove Park until she sustained a back injury in the course of her employment on 30 December 1994.  It is that event which has given rise to these proceedings.

During the 3.30pm to 8.30pm shift on which the plaintiff was working that day she noticed that Mr Clayton, a 74 year old patient, who suffered numerous disabilities, including chronic urinary incontinence, was sitting in his recliner chair in the day room.  He was surrounded by a pool of urine and obviously required attention.

Usually the plaintiff worked with Jane Collins, another ECA, but on the evening in question Miss Collins' place had been taken by Tracey Wilson who had been employed as an ECA at Cosgrove Park since 12 September 1994.

The plaintiff wheeled Mr Clayton's recliner chair to the toilet in Franklin Ward to change his saturated clothing and to otherwise attend to his toiletting needs.  In this she was assisted by Miss Wilson.  During the course of moving Mr Clayton from the toilet bowl back to his recliner chair the plaintiff was injured.  She claims that this was caused by her employer's want of care or breach of statutory duty in a number of respects.  By agreement the trial has been split and I have been asked to deal with the issue of liability only.

The particulars of negligence alleged in par10 of the statement of claim are as follows:

"PARTICULARS OF NEGLIGENCE AND/OR BREACHES OF AGREEMENT

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

(a)Required the Plaintiff to manually assist the patient when it, ought to have known that the Plaintiff would be exposed to a risk of injury by reason of:

(i)        The weight of the patient;

(ii)       The physique of the patient;

(iii)      The patient's medical history;

(iv)      The patient's history of erratic behaviour.

(b)       Required the Plaintiff to assist a patient in circumstances where:

(i)        The Plaintiff was aided by an inexperienced assistant;

(ii)There was insufficient room to attach a hoist or other lifting device to the patient in the toilet where the Plaintiff's injury occurred;

(iii)The person designated to assist the Plaintiff was fearful and frightened of the patient.

(c)Failed to allocate sufficient staff members to assist the patient from a toilet to a recliner chair.

(d)Failed to provide mechanical lifting aids for the Plaintiff's use when assisting the patient from a toilet to a recliner chair.

(e)Failed to instruct the Plaintiff in the safe methods of assisting patients and/or lifting patients who were mentally unstable.

(f)Failed to warn the Plaintiff of the risks inherent in the work she was required to carry out.

(g)Failed to protect the Plaintiff from patients who were prone to aberrant and aggressive behaviour."

As the trial developed, it was plain that the plaintiff's case on liability, was based on three inter-related propositions.  First, that a mechanical hoist should have been available for use to enable those transfers which were necessary to move Mr Clayton from the recliner chair to the toilet bowl and back to the recliner chair.  Second, that Miss Wilson was an unsuitable assistant to be paired with the plaintiff to perform these transfers as she was less experienced than, and of lighter physique than the plaintiff, and was afraid of Mr Clayton's aggressive nature, all of which characteristics contributed to her losing her hold upon him at the crucial time, thereby causing his full weight to fall upon the plaintiff, thus causing her injury.  Third, it was claimed that in the absence of a mechanical hoist, Mr Clayton's toiletting and transfers should only have been attempted with three attendant carers.

At the outset it should be observed that Mr Clayton is now deceased and of the two surviving witnesses to the plaintiff's mishap, namely the plaintiff herself and Miss Wilson, only the plaintiff claims to have a detailed recollection of the sequence of events which led up to that occurrence.  This does not necessarily mean that the plaintiff is to be preferred to Miss Wilson in those areas where recollections differed.  There were a number of features about the plaintiff's evidence which I found unconvincing, and I will refer to these in due course.  On the other hand, Miss Wilson, frankly conceded those matters as to which she had an imperfect memory, and generally speaking I have no reason to doubt what she told me.  Accordingly, although I accept much of what the plaintiff told me, I prefer Miss Wilson's evidence to that of the plaintiff in most respects where they are in conflict.  This will become apparent from the findings which I make in due course.

Paragraphs 6, 7 and 8 of the statement of claim are as follows:

"6ON or about the 30th day of December 1994 the Plaintiff was required in the course of her employment with the Defendant to assist one Mr Cyril Clayton, a patient at the nursing home (hereinafter "the patient"), move from a toilet to a recliner chair.

7AS the Plaintiff assisted the patient he struggled and lost his balance.

8AS the patient lost his balance, the Plaintiff attempted to take hold of him to arrest him from falling."

The defence has formally admitted each of these allegations but neither these allegations nor the plaintiff's accident/incident report made to her employer in writing on the day she was injured, nor, indeed her workers compensation claim made six days later, accurately recount the sequence of events of which the plaintiff gave evidence during the trial.

The accident report described the relevant incident as follows:

"Was trying to transfer Mr Cyril Clayton with Tracey Wilson from toilet to arm chair.  Mr Clayton fought against us, didn't want wet trousers changed.  It was during the transfer that I felt the bottom part of my back grab with pain.  Mr Clayton also tried to hit myself and Tracey Wilson which we were able to prevent."

In the workers compensation claim she said, "A resident Mr Cyril Clayton was being aggressive whilst myself and another staff member was trying to change wet trousers when I felt strain in by [sic] back which then I felt severe pain."  In answer to interrogatory 8, "How did the injury first manifest itself?", the plaintiff said, "During the process of struggling to get Mr Clayton to the chair I experienced pain in the mid portion of my back towards the right side."

Defence counsel submitted that this material strongly suggested that the plaintiff's back injury did not occur in the manner which she described in evidence.  During her oral testimony the plaintiff said that she and Miss Wilson had removed Mr Clayton's wet trousers before placing him upon the toilet to see if he could use his bowels, then after a few minutes, when it became apparent that he was unable to do so, she, the plaintiff took him under his right arm, with her right arm.  Miss Wilson took his left arm under her left arm and between them they lifted him off the toilet bowl.  She said that she had then wiped his groin and buttocks whilst holding him erect near the hand basin and commenced to apply ointment to his buttocks area, bending over as she did so whilst still maintaining a hold on his arm with hers.  This caused the patient to become even more restless and aggressive than he had been before and he started trying to punch Miss Wilson.  He then over-balanced and fell across the plaintiff.  She grabbed his clean trousers (which had been placed upon him after he attempted to use the toilet) and managed in this way to manoeuvre him into the recliner chair.  The plaintiff did not specifically claim that Miss Wilson had lost her grip upon Mr Clayton thus allowing him to fall with his full weight upon the plaintiff's body, but she did say that immediately after guiding Mr Clayton into the chair she saw Miss Wilson some distance away with a frightened expression on her face.

Defence counsel suggested that the plaintiff had materially changed her story from that which was evident from the accident report, the compensation claim and the answer to interrogatory 8, but I do not accept that to be so.  True it is that she claimed originally to be engaged in "changing the patient's wet trousers" at the time of her injury, but I think this was a general description of the task in which she was involved, rather than a definition of the causal incident which precipitated the back injury.

In any event it seems to me to be of little real significance except insofar as it affects my assessment of the plaintiff's reliability as a witness.  At whatever stage of the process the plaintiff was injured it seems to me that the same issues must arise.  It was not suggested by the defence that whatever the discrete task in which the plaintiff was involved at the moment she was injured, it was outside the scope of her duties.

The plaintiff's case was put on two alternative factual bases.  Either she was injured as the result of Miss Wilson's inexperience and her consequent failure to prevent Mr Clayton falling on the plaintiff, the plaintiff saying in effect, that her employer should have provided her with a more experienced assistant, or alternatively she was injured as a consequence of her employer failing to provide her with additional assistance, such as a hoist or an additional attendant. 

The first of these propositions I can discard at the outset.  I find that Miss Wilson did not allow Mr Clayton to fall upon her colleague.  Nor was she afraid of Mr Clayton as the plaintiff suggested.  She may well have had a look of concern or alarm upon her face upon seeing Mr Clayton collapse on top of the plaintiff, as described by the plaintiff, but I reject the inference that she was frightened of him and by trying to keep her distance from him she allowed him to slip from her grasp.  She struck me as a particularly fit and level-headed witness and I accept her denials of these allegations.

Proceeding therefore on the basis that the plaintiff's back was injured as a result of Mr Clayton lurching or falling against her as she was applying ointment to his posterior, I turn to consider the three substantive allegations of negligence that have been made, but before doing so it is necessary to describe the physical and other relevant characteristics of each participant in this unfortunate event.

Mr Clayton was stated to have weighed about 65.5 kilograms at the relevant time.  He was described by the plaintiff and other witnesses as a big man but there was a considerable discrepancy between witnesses as to his height.  One, Mrs Connaire, said he was at least 6 foot 2 inches tall.  Another, Mrs Austin, said he was about 5 foot 6 inches.  Dr Rowe described his weight as about average.  On the whole of the evidence I would not be justified in considering him to be an individual of other than average height and weight.

It appears that Mr Clayton was at Cosgrove Park as the result of having suffered a fairly severe stroke to the left side of his body.  He had been a patient for some years prior to December 1994.  He had lost the use of his left side of his body and wore a calliper on his left leg.  He had weakness to the left side of his face.  He was unable to speak and had difficulty swallowing.  He also had high blood pressure and poor peripheral circulation.  He was totally incontinent of urine.

It is alleged in the statement of claim that he was mentally unstable but this was not supported by the evidence.  On the other hand his behaviour was unpredictable and he could be very aggressive, on occasions struggling with and trying to strike carers who were attending to him.  He particularly disliked being toiletted and was a very difficult patient to handle.  His only means of communicating was by grunts or banging utensils to attract attention.  Whilst not necessarily intellectually incompetent he was obviously very frustrated and unhappy.

It was claimed by the plaintiff that Mr Clayton was unable to stand or bear his own weight at all.  She claimed that as a consequence his full weight was borne by his carers when he was being transferred or attended to as he was immediately before the plaintiff was injured.

I am unable to accept this claim.  Not only was the plaintiff self-contradictory in some of her answers to defence counsel's questions, but her evidence as to Mr Clayton's ability to stand was contrary to the evidence of Mrs Austin and Miss Wilson.  Mrs Austin said that he could stand if supported by two assistants.  This was confirmed by Miss Wilson.  I accept that although Mr Clayton was unable to walk he was capable of standing if supported by two carers, and I find that immediately before he fell across the plaintiff he was weight bearing on his own feet with the assistance of the plaintiff and Miss Wilson.  Indeed if it had been otherwise, I am quite certain that the plaintiff would not have been able to support him with her right arm and apply ointment to his buttock area with her left, while bending over with her head level with his buttocks as she described.

The plaintiff is 165 centimetres (5 foot 4 inches) tall and weighed about 75 kilograms at the relevant time.  She was physically fit and strong in the upper body.  The plaintiff described Miss Wilson as "very little" and of small physique, weighing about 50 or 55 kilograms.  This description hardly does justice to Miss Wilson.  As I saw her, in the witness box, she was a young woman of average physique about 160 centimetres (5 foot 2 inches) tall.  She also gave evidence that she has been involved in many strenuous sporting activities, such as water skiing, wind surfing, rock climbing and net ball.  I am in no doubt that at the time of the accident she was physically very fit and probably quite strong.

Although the plaintiff was the heavier of the two I see no obvious discrepancy between their height and physical capabilities.  It is necessary to make this comparison because one of the plaintiff's arguments, advanced through Dr Rowe, a specialist occupational physician, was that for both the plaintiff and Miss Wilson to be engaged on the type of task which they had in hand at the relevant time, was contrary to good practice as defined in parA6 of Appendix A to Australian Standard 2569, Pt 1 ¾ 1982.  "Guide to Lifting and Moving Patients.  Pt 1 ¾ Safe Manual Lifting and Moving of Patients" which states, "1 ¾ Personnel of equal stature are preferred when more than one person lifts".  Dr Rowe suggested that this recommendation was even more appropriate in the case of an aggressive or fractious patient.

I have difficulty in accepting this proposition in relation to the task in which the plaintiff and her colleague were involved at the time of her injury.  As I have found, Mr Clayton was weight bearing on his own feet immediately prior to that event.  He was being held firmly in that position.  He was not being lifted.  I can understand that two carers of equal size and strength could be required to lift a patient ¾ otherwise the weaker or shorter may find he (or she) could not cope with the same load as the stronger or taller colleague.  But such was not the case here.  In any event the plaintiff and Miss Wilson did not differ materially in physical capability.  What the plaintiff had in bulk may have been more than compensated for by Miss Wilson's fitness and strength.

In short I reject this line of argument as one which would justify a finding adverse to the defence.

I turn next to consider the submission that use of a hoist should have been a required method of dealing with patients such as Mr Clayton.  It should be noted at the outset that a hoist of the kind suggested by Dr Rowe as suitable for this kind of work, was in fact available in the Clarendon Ward bathroom, at the time of the plaintiff's accident.  Clarendon Ward is adjacent to Franklin Ward.

No precise estimate was given of the distance from the Clarendon bathroom to the Franklin toilet but it does not appear to have been significant.  The plaintiff knew that such a hoist was available and that she had a discretion whether to use it or not.  However, she and other witnesses stated that this hoist was generally only used for bathing patients or putting them into or out of their beds.  It was used for toiletting very heavy patients on some occasions.

I must say that having regard to the fact that this device required patients to be lifted in a seated position, and although not cramped, the toilet area in Franklin Ward was a fairly confined space, coupled with the unpredictably aggressive conduct which Mr Clayton was wont to exhibit, I have difficulty in concluding that this device, or one like it, should have been specified for use by the defendant in this type of situation.  The device was certainly available for use and I do not accept the plaintiff's complaint that it was not reasonably accessible.  I think the plaintiff's real complaint is that it was not specified as the preferred means of toiletting Mr Clayton in his "Care Plan".  A care plan as I understand it is a document compiled for the assistance of carers at the institution recommending and specifying particular methods of care for individual patients.  It is updated and amended from time to time to cater for and to accommodate changes in the patient's condition.  There was a care plan on Mr Clayton's file.  It did not specify or recommend the use of a hoist for toiletting or other purposes.

This is not surprising to me.  Not only do I think it would have been inappropriate in all the circumstances notwithstanding Dr Rowe's views to the contrary, I am also of the view that it would also have been very difficult to implement because Mr Clayton would almost certainly have rejected it as an option.  It is apparently accepted that a patient's wishes on such matters are to receive the greatest respect.  Mr Clayton had firmly rejected a wheelchair for the purpose of being moved about Cosgrove Park and had virtually insisted that he be wheeled about in his reclining chair.  He had also refused to use a hoist for bathing.  Dr Rowe acknowledged that a lifting device could be uncomfortable for the patient.  I have little doubt that Mr Clayton would have reacted vigorously if an attempt had been made to put him in a hoist.  It must be remembered also that to do so would have involved additional transfers from his chair and back after the toiletting procedure had concluded.

It is also worth noting that the plaintiff conceded that she could have and would have acted outside the confines of the care plan by using a hoist if she had thought it appropriate to do so, but, she said, she did not consider it was required at the time.

Dr Rowe suggested that a somewhat different hoist of the kind depicted at the bottom of page 2 of exhibit P9 could have been used for toiletting purposes, as it allows better access to the patient's groin and anal areas for cleaning by a carer, than some of the other lifting devices.

However, Dr Rowe did not claim to have had practical experience with this or indeed any other of the hoists, nor had he inspected the toilet area in Franklin Ward or been made aware of its dimensions.  Counsel agreed that the toilet area was 3 metres by 2.5 metres and that the toilet seat is 460 millimetres above the floor.  Space within the toilet was taken up by a shower cubicle beside the toilet bowl and a hand basin in front of and to the side of the toilet bowl.  This arrangement is depicted in photograph exhibit P8.

I do not accept Dr Rowe's opinion that a lifting device was an appropriate means for carrying out Mr Clayton's toiletting requirements in the circumstances, and accordingly I find no breach of a duty of care on the part of the defendant in failing to specify or implement this system.

The plaintiff's final contention requiring consideration is that the defendant should have instituted and enforced a system for Mr Clayton's toiletting involving three rather than two carers.  Dr Rowe said that he would categorise Mr Clayton as a "geriatric patient with complications" whose condition included "problems with weight, size, shape and condition", who would fall within the second classification for totally dependent patients referred to in Appendix C of Australian Standard 2569 (exhibit P3).  If this classification is correct it is plain that an application of the Standard to the defendant's care plan for Mr Clayton would have required the use of a minimum of three persons to be involved in any manual lifting or moving of the patient.

Counsel for the defendant argued that Mr Clayton would just as readily fall within the first classification of totally dependent patients in which case only two persons are recommended as necessary for any lifting or moving of the patient.  The minimum condition of the patient to fall within this category is "prone, supine or seated" and an example is given of "head injury patients, major surgical cases, profoundly retarded patients and disabled".

Without assistance in separating category one from category two patients, either by defining or expanding the terms used or explaining how the categories have been distinguished in particular circumstances, it is no easy task to characterise Mr Clayton as one or the other, and I think it is therefore appropriate to bear in mind three pivotal facts of particular significance in his case.  First, he had strength in the right side of his body, second, he was unpredictable and third, he could be violently uncooperative.  In such circumstances it seems to me that unless two carers were able to concentrate their efforts on lifting, steadying and restraining him, whilst a third attended to cleaning, anointing and dressing him, a risk existed of the very type of misadventure and resultant back injury which befell the plaintiff.  It is quite plain that bending over whilst applying cream to Mr Clayton's buttocks and at the same time trying to restrain his aggression with her right arm placed the plaintiff in a position of risk.

The defence argues that the plaintiff knew that Sister Penberthy was available to assist if required and that in the circumstances the plaintiff should have called for her aid.  The plaintiff agreed with counsel that she could easily have obtained assistance from somebody else to help her on that particular task that night.

The plaintiff said that she believed Sister Penberthy to be aged between sixty and sixty-five and "I would avoid asking Sister Penberthy to help me do a transfer for the reason of her being a senior and old and frail".  Sister Penberthy did not give evidence and I have no other evidence than that given by the plaintiff by which I could assess her physical capabilities.  The plaintiff said "Her function mainly was to be in charge of staff and have control responsibility for the residence and make sure that the staff carried out their duties.  But her main role of an evening was to maintain that the residents got their medication".

Mrs Tracey Ellston, an ECA employed at Cosgrove Park between 1992 and 1995, who was called as a witness by the plaintiff, said that she was aware that if two staff members were unable to control a patient such as Mr Clayton "we would call for the third staff member to come and help".  She said that this occurred "mainly on the toiletting at afternoon shifts.  I mean, because he would be absolutely soaked by the time we would get on at 3 (pm).  I mean it would take three of us to get him in the bathroom to change him and to change him ... two would hold him up while the third actually removed his wet underwear, trousers.  We would sit him back down.  One would be holding him so he wouldn't strike out while the other two changed the bottom and then restrained him and redress him ... using the same procedure."

Mrs Ellston didn't suggest that these procedures were in any way inhibited by an absence of the prescription of a third helper in Mr Clayton's care plan.

The plaintiff, however, said "we were bound by the terms of the care plan" although as I have already pointed out she did not regard the care plan as providing an inflexible code of procedure for attending to patients.

Clearly staff were vested with a level of discretion as to how and when they would deal with a particular patient's needs and, equally obviously the care plan was not a document which purported to lay down strict and rigid protocols.

The difficulty lay in Mr Clayton's unpredictability.  I have little doubt that nine times out of ten it was quite safe for two staff members to be engaged with his toiletting episodes.  His aggressive moods could develop and escalate quite rapidly however.  Once his behavioural pattern had changed in this way it would be difficult to summon help from some other part of the establishment as two carers would plainly be fully engaged in trying to control him.  Of course, they could desist from what they were doing and, in accordance with an accepted practice, they could have left him to cool off, so long as he had been left in a position of safety.  There was no pressing urgency or heavy schedule of duties so far as I am aware which would have rendered such a course impracticable on the evening of 30 December 1994.

I have already found that Miss Wilson acted appropriately and did not in fact relinquish her hold upon Mr Clayton at the time he fell against the plaintiff, but in the context of the present discussion it is worth recalling that she had had no special training for dealing with aggressive patients and she had no understanding at the time of special practices which might be called for in such circumstances.  Like the plaintiff she had had practical experience of Mr Clayton's difficult behavioural problems.

However, the point in question is the sufficiency of the defendant's instructions to staff and the treatment and caring protocols which the defendant had in place to be followed by staff members.  As between the plaintiff and Miss Wilson I think both regarded the plaintiff as in charge of the toiletting operation by virtue of her seniority in age and experience.  It would therefore be unrealistic to have expected Miss Wilson to attempt to direct the plaintiff in how to carry out the process.  Bearing in mind the defendant's obligations as employer to devise and implement safe systems of work, I think it should have recognised that for Mr Clayton, who was described by many witnesses as one of the most difficult patients in the institution, a care plan requiring the attendance of three members of staff for his visits to the toilet, should have been put in place.  It was not suggested by the defence that to do this would create unreasonable difficulties or involve the institution in excessive expense.

The plaintiff's discretion to call for a third helper in a situation such as that confronting her on 30 December 1994 cannot displace the defendant's responsibility to ensure that an appropriate system was in place.  Without such a system there was real and appreciable risk of injury if Mr Clayton suddenly became aggressive and violent whilst being attended by fewer than three carers.  There are certain similarities between this case and Sroka v Ridge Park (1981) 28 SASR 15, in which Wells J made some useful observations at 22 - 25 which could be applied here. I am satisfied on the balance of probabilities that the defendant failed in its duty of care to the plaintiff by failing to have in place the system of work contended for. No separate submissions were made to me concerning the defendant's alleged breach of statutory duty and on the findings I have made it is unnecessary to consider this further.

The remaining issue calling for resolution is whether or not the plaintiff was guilty of contributory negligence.

The defence has alleged that she exhibited a want of reasonable care for her own safety in failing to call for additional help when Mr Clayton's behaviour became aggressive; by failing to withdraw from his presence at that time; by attempting to restrain him without calling for additional help; and by failing to properly assess the task she was undertaking before doing so; and by failing to plan the task before attempting to carry it out.  Of these five complaints only the last two require detailed examination in my view.

The first three which concern an alleged want of care in failing to take action once Mr Clayton's aggression became manifest, cannot be sustained in my view.  The plaintiff and Miss Wilson were engaged in their task in a separate and private area.  There was little time to respond to Mr Clayton's behaviour and such responses as occurred involved attempts to quieten and restrain him.  It was not reasonably open for either the plaintiff or Miss Wilson to disengage herself from the task in hand to seek reinforcements.  Nor would it have been reasonable to just relinquish their hold upon Mr Clayton and remove themselves from his presence.  He could not stand or walk unaided and inevitably he would have fallen and probably sustained serious injury by knocking against the basin, toilet bowl or concrete floor.

The alleged failure by the plaintiff to assess the task beforehand calls for closer scrutiny.  The plaintiff struck me as a fairly unimaginative person who set great store by the care plan which was incorporated in Mr Clayton's records, although she was aware that additional assistance could be called for if required.  She had no reason to suppose that Mr Clayton would necessarily stage a violent outburst in the toilet, but she was very familiar with the type of behaviour which he in fact exhibited on the occasion in question, and she knew that he was completely unpredictable.  She had had many years experience with her job and I think must have been conscious of the presence of some degree of risk whenever Mr Clayton's toiletting had to be undertaken.

As I said in Knight v Tassal Limited, B34/1993:

"Courts of the highest authority have consistently emphasized the proposition that mere inadvertence, inattention or misjudgment by an employee, particularly one preoccupied with the performance of duties in the course of his or her employer's business, does not amount to contributory negligence, see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 per Lord Wright at 176, Sungravure Pty Ltd v Meani (1963-1964) 110 CLR 24; Commissioner for Railways v Halley (1978) 20 ALR 409; The Commissioner of Railways v Ruprecht (1979) 142 CLR 563; McLean v Tedman (1984) 155 CLR 306 and Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529. In all of these cases however, it has been stressed that a finding of contributory negligence involves a consideration of the totality of all relevant circumstances and, furthermore, once a finding of contributory negligence has been made, the question of apportionment involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage."

A conscientious employee who is intent upon performing his or her duties and momentarily places himself or herself in a situation of risk is not to be minutely criticised if harm results.  Nonetheless, I think a moment's reflection by the plaintiff should have alerted her to a risk of injury in the present circumstances, particularly as she herself apparently felt less than complete confidence in her ability to carry out the toiletting process without incident, as she believed she would be aided by an inexperienced assistant with whose capabilities she was unfamiliar.  In the circumstances I think it reasonable and appropriate to find that the plaintiff was contributorily negligent in failing to assess the task ahead and arrange for further assistance to be available.  In my opinion it is just in all the circumstances that her damages should be reduced by 10%.

Accordingly, there will be judgment for the plaintiff against the defendant for damages to be assessed, such damages to be reduced by 10% on account of the plaintiff's contributory negligence.