The Quadriplegic Centre Board of Management v McMurtrie
[2009] WASCA 173
•13 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT -v- MCMURTRIE [2009] WASCA 173
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 13 AUGUST 2009
DELIVERED : 13 OCTOBER 2009
FILE NO/S: CACV 120 of 2008
BETWEEN: THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT
Appellant
AND
KAREN MCMURTRIE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SLEIGHT DCJ
Citation :McMURTRIE -v- THE QUADRIPLEGIC CENTRE BOARD OF MANAGEMENT [2008] WADC 170
File No :CIV 2424 of 2005
Catchwords:
Tort - Negligence - Failure to warn nursing assistant of incidents involving patient assaulting other staff - Whether duty to warn - Whether breach of duty - Whether failure to warn caused injury
Whether reasons for factual findings and findings of breach of duty of care made by the primary judge were adequate
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Ms G A Archer SC & Mr D M G Burton
Respondent: Mr J R Johnson
Solicitors:
Appellant: SRB Legal
Respondent: Julian Johnson Lawyers
Case(s) referred to in judgment(s):
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Barnes v Hay (1988) 12 NSWLR 337
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Illawarra Area Health Service v Dell [2005] NSWCA 381
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52; (2006) Aust Torts Reports 81‑840
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Paris v Stepney Borough Council [1951] AC 367
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Sheather v Country Energy [2007] NSWCA 179
Shire of Gingin v Coombe [2009] WASCA 92; (2009) 52 MVR 382
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PULLIN JA: This is an appeal against a judgment entered against the appellant in the District Court in the sum of $510,840. The case involved a claim by the respondent that she suffered personal injury during the course of her employment as a nurses' assistant at the Quadriplegic Centre. The trial judge found that the injury was caused by the appellant's negligence.
The trial judge had to determine issues about how the respondent was injured, the scope of the duty of care owed by the appellant, whether there was a breach of the duty by the appellant and whether the alleged breach of duty caused the injury. All of these issues were resolved in favour of the respondent which conclusions are challenged in this appeal. The respondent has filed a notice of contention setting out other reasons why the judgment is sound. The trial judge found that the respondent was guilty of contributory negligence and that in consequence, damages should be reduced by 20%. The agreed quantum of damages was therefore reduced to the amount for which judgment was entered. The finding of contributory negligence is not challenged on this appeal.
Before setting out the grounds of appeal, I will refer to the undisputed facts and unchallenged findings, the evidence of disputed issues, the pleadings and the judge's reasons.
Evidence - undisputed facts and unchallenged findings
There is now no dispute that:
(a)the respondent was a nurses' assistant who worked at the Quadriplegic Centre and was employed by the appellant;
(b)on 24 May 2001, at 2 am, the respondent and another nursing assistant, Ms Marshall, entered the room of a patient (Mr RJ) intending to turn him over in his bed;
(c)Mr RJ was a long term resident of the Quadriplegic Centre. He was injured in 1967 when dumped in the surf at Scarborough. The injury involved a fracture of the fifth cervical vertebra. Neurological impairment, previous injury and the passage of time produced very substantial contractures and deformity in his fingers and thumbs of both hands such that he had no form of useful grip. Despite being a quadriplegic, Mr RJ could extend his arm, right or left, while lying in bed and he was capable of making sudden movement outwards and downwards [32] and [86.14];
(d)the level of disability, the extent of dependency on others and the frustration this caused meant that Mr RJ, like some other residents, was pedantic about routine and care and he would sometimes swear and use harsh, direct language to staff members. Mr RJ was well known to the staff, including the respondent, to be a person who was frequently verbally aggressive [86.1];
(e)The Quadriplegic Centre had a number of procedures in place directed to control the behaviour of residents. This included an orientation programme which informed new staff of the protocols of the Quadriplegic Centre for dealing with unacceptable behaviour. The respondent underwent such orientation and received instructions as to the protocols. There was a system in place for the care of residents which included a written nursing care plan which was reviewed monthly and annually by nursing staff and by the resident who annually signed his acceptance of the plan. Such a plan was in existence for Mr RJ. A separate record known as the 'Integrated Progress Notes' was maintained which recorded any incidents or changes in the care of the resident. A procedure for reporting of incidents involving residents existed and an incident report was submitted to the Director of Nursing which included provision for making a recommendation at to any changes to be implemented;
(f)however, there was limited capacity for the Quadriplegic Centre to control the behaviour of residents. The Quadriplegic Centre was a facility of last resort. This meant that it was difficult to impose a sanction against a resident for unacceptable behaviour. The Quadriplegic Centre was usually unable to expel a resident because of unacceptable conduct;
(g)staff were instructed to report incidents involving physical aggression by patients. Staff were not instructed to report or record incidents involving verbal aggression. The trial judge found this to be appropriate given the circumstances of the residents and the frequency with which such verbal aggression occurred;
(h)on 1 November 2000 a report was made to the registered nurse on duty by a nursing assistant, Mr Siharath, that an incident occurred at night after Mr RJ was turned and objected to his pillows being rearranged. Mr RJ swore at Mr Siharath and when Mr RJ was asked to quieten down, Mr RJ hit Mr Siharath on the right shoulder. This caused no injury. This incident was included in a written incident report and recorded in the integrated progress notes and this was reported in the next shift;
(i)there was no procedure that nursing assistants read the integrated progress notes to familiarise themselves with any incidents that had been recorded, nor were they directed to do so (although they were available for inspection by nursing assistants coming on duty);
(j)the incident involving Mr Siharath was investigated by Ms Knight. She concluded that the force used by Mr RJ was minimal on the basis that no reported injury was suffered by Mr Siharath and she accepted Mr RJ's description of the incident which was that he had simply slapped Mr Siharath. Mr RJ was warned by Ms Knight that his conduct was unacceptable. Further, Ms Knight implemented a change to the procedure of dealing with Mr RJ by requiring that all future turns of Mr RJ were to be conducted by two staff members;
(k)the trial judge found that the response by Ms Knight in relation to the Mr Siharath was 'appropriate and reasonable in the circumstances'; that the 'alleged contact with Mr Siharath was an isolated incident'; and that it was not necessary for the Quadriplegic Centre to threaten Mr RJ with expulsion from the centre [86.9];
(l)prior to 24 May 2001, the management of the Quadriplegic Centre did not have any knowledge of any other incident involving violence by Mr RJ, but after 24 May 2001, it was reported to management that in April 2001, Mr RJ had lashed out with his right hand when he was being turned by a Ms Wynne, a registered nurse, but that there was little physical power used. Ms Wynne did not suffer injury;
(m)before 24 May 2001, the respondent was involved in a number of incidents where Mr RJ had been verbally aggressive towards her. These incidents were reported to the respondent's superior, Ms Brown, a registered nurse, and she took the view that the respondent had not followed the protocols by reprimanding Mr RJ and leaving the room. As a result, Ms Brown gave the respondent a direction that she was not to go into Mr RJ's room again;
(n)before 24 May 2001, the respondent had no knowledge of the incident involving Mr Siharath or Ms Wynne.
The respondent's pleaded case
The respondent, in her statement of claim, pleaded that on 24 May 2001:
5.1At about 2 am, the [respondent] in the course of her work for the [appellant] at the Quad Centre was instructed to assist another worker in turning RJ.
5.2Consequently the [respondent] attended RJ's room at the Quad Centre.
5.3As the [respondent] sought to untuck the draw sheet beneath RJ, in order to turn him RJ:
5.3.1swore aggressively at the [respondent] stating 'What the fuck are you doing, put it back', and
5.3.2hit out towards the [respondent's] face which was to the side of the bed given she was untucking the draw sheet.
5.4In reaction to RJ's actions pleaded in para 5.3 herein the [respondent] lurched backwards and thereby sustained injury [to her back].
The respondent's evidence
The respondent gave evidence that the process involving the use of a draw sheet was as follows. Normally a resident was lying on his or her side with a pillow behind the resident's back. The pillow was removed which caused the patient to roll back onto his or her back. The resident was then drawn towards one side of the bed using a draw sheet which was positioned underneath the resident and then the resident was gently rolled over onto his or her other side.
She gave evidence that, at about 2 am, she entered Mr RJ's room with Ms Marshall. They did not turn on the light as they did not want to wake him. She was aware that when he was woken up he was likely to get verbally aggressive. She believed that Mr RJ was asleep. The respondent and Ms Marshall positioned themselves on either side of the bed with the respondent on the right‑hand side (being on Mr RJ's right‑hand side when he was lying on his back). Mr RJ was lying on his right side with pillows behind his back. They removed a urinary bottle and Ms Marshall then removed the pillows from behind his back. This caused Mr RJ to roll onto his back. The respondent said she then bent down to untuck the draw sheet. She was bent at an angle of about 45 degrees. Her head was about 30 cm from the bed. She said Mr RJ yelled 'What the fuck are you doing, put it back' and lashed out with his right arm which was coming directly at her face. She described it as a movement mainly from his shoulder. She said that she went up and back quickly to avoid being hit in the face. No contact was made. The respondent said she went out of the room after a registered nurse came into the room and Mr RJ turned himself. She felt a burning sensation in her lower back. She spoke to the registered nurse and was given some analgesics and an ice pack.
The respondent gave evidence that if she had known that RJ had assaulted other staff members it would have made a huge difference in the manner in which she approached him. She said she would never have put her face so close to him. She said she would not have bent down to untuck the draw sheet but would have remained in a more upright position. She admitted that she knew that Mr RJ could be verbally aggressive, she knew she had to be careful and not to wake him up.
In cross‑examination it was put to the respondent that Mr RJ had not struck at her but had flapped his arms down onto the draw sheet trying to stop her from moving the draw sheet. The respondent denied this. She maintained that Mr RJ lashed out at her with an outward movement of the right arm. She said it was definitely an outward movement and was not down on the draw sheet simply to stop her from using the draw sheet. When it was put to the respondent in cross‑examination that she should be standing with a firm back when pulling the draw sheet she said that was correct but that she was 'untucking it at the time which meant that I had to bend down to do that' (ts 41).
Ms Marshall's evidence
The nursing assistant with the respondent, Ms Marshall, was called by the appellant. Her evidence was that she and the respondent entered Mr RJ's room together. She said the night light was on because one of them would have switched it on when they entered the room. They positioned themselves on either side of the bed. There was a draw sheet but in her experience with Mr RJ, the procedure for turning him was not to use the draw sheet but to allow him to turn himself using the sling which was suspended above the bed. Ms Marshall stated that Mr RJ was lying on his right side. She said that she was new to the ward and was therefore watching the respondent carefully to see what she intended to do. Ms Marshall removed a pillow which was behind Mr RJ's back. She then observed the respondent pull out the draw sheet. At that point Mr RJ hit down on the draw sheet with his right hand and said 'What the fuck are you doing'. She did not observe Mr RJ lash out at the respondent, nor did she see the respondent lurch backwards. Ms Marshall, in cross‑examination, agreed that she had a clear recollection that the respondent never bent forward to untuck the draw sheet from under the mattress. She said that the respondent was in a standing position with a straight back (ts 181). She said she was watching the respondent closely and did not want to do anything she was not supposed to do.
Ms Marshall said that after Mr RJ swore at the respondent, the respondent placed the draw sheet back in and a turn was executed by Mr RJ using the sling above his bed and he rolled himself over. The registered nurse came into the room and further swearing occurred. Ms Marshall said that she had been working on the ward for six weeks and had turned Mr RJ about 20 times. She said her understanding was that the turns on Mr RJ were to be a two person turn, but the draw sheet was not to be used.
Ms Marshall stated that she thought she had turned the light on when they entered the room, but later admitted that she could not remember whether the light was on or off. Later, she stated that as far as she was concerned, Mr RJ was not to be turned using a draw sheet and that this was recorded in a list of turns to be performed. However, she later said that the method of turning was not documented, just that Mr RJ was to be turned. She described Mr RJ as having a pillow between his legs to stop him turning over and the pillow was between his knees, but she later conceded in her evidence that she was not sure whether he had one leg or two legs at the time of the incident. Initially, Ms Marshall stated that the respondent had completed pulling out the draw sheet when Mr RJ swore, but later conceded that she had only half untucked the sheet.
Evidence of Mr RJ's capacity to move his arms
Dr Ker is a consultant physician in rehabilitation medicine. He was the Head of Department in the Sir George Bedbrook Spinal Injury Unit at the Shenton Park campus of Royal Perth Hospital and had held that position for 14 years. He had also known Mr RJ for many years. From his observations of Mr RJ, he said that Mr RJ was able to demonstrate 'actively' a full range of uncompromised shoulder movement. Dr Ker explained that 'actively' meant in contrast to 'passively'. Passive movement is movement when the person's arm is moved by someone else; active movement is when the patient himself conducts the movements. By an 'uncompromised' range of shoulder movement, Dr Ker explained that this meant that he had full elbow flexion and abduction, internal rotation and external rotation of the shoulder. He could undertake a full range of elbow flexion and extension against gravity. He had the capacity to forcibly extend his arm right or left while lying in bed. Dr Ker said that:
[W]hen I say forcibly this man is able to demonstrate those movements with a force greater than carrying the arm through against gravity. When we grade muscle strength the International Classification of Muscle Strength varies from 0 to 5, 5 is normal strength that you would expect to find in any able bodied adult, a grade 4 is a grade of strength that is stronger than moving it against the forces of gravity but not as strong as able bodied adults. [Mr RJ] in the movements that I tested had a grade of 4 out of 5 strength (ts 146).
Dr Quarles gave evidence that gradings 1 to 3 involved a range from an inability to move a limb against gravity at all, without assistance, to less than that.
The trial judge accepted Dr Ker's evidence in relation to the physical capabilities of Mr RJ in 2008. His Honour said that the finding accepting Dr Ker's evidence was 'supported by the evidence of Dr Quarles and Ms Brown' [86.14]. Dr Quarles was a general medical practitioner and had provided medical services to the Quadriplegic Centre for about 12 years. He visited as a sessional general practitioner about four times a week. He had been Mr RJ's general practitioner for about 12 or 13 years. Dr Quarles, in a report which was tendered, stated at par 22:
In my opinion based on my knowledge of the nature and extent of [Mr RJ's] severe medical condition … I do not consider that he was physically capable of delivering an injurious blow to an adult staff member.
At the conclusion of his examination‑in‑chief, Dr Quarles was asked about that paragraph and added:
Well, Mr RJ has some residual movement and power in, in his shoulder. He could, I think, deliver a blow of a moderate force but it would be a very crude blow. It would have very little direction and control over it, and generally I don't think it would come to much, and so whether that would - I would really doubt whether that would result in a, in a significant injury of any type in an adult person looking after him (ts 203).
Dr Quarles said he supposed that 'you could knock over a small child with it' (ts 215). Dr Quarles deferred to Mr Ker's opinion (ts 211).
Findings made by the trial judge about the incident
The trial judge rejected the respondent's evidence in two important respects. The first was in finding that Mr RJ's actions did not involve an attempt to lash out at the respondent [86.13]. Secondly, the respondent denied that she had been given a direction not to go into Mr RJ's room, which the trial judge rejected. The trial judge also referred to the inconsistency in Ms Marshall's evidence [68.11]. The trial judge accepted some of each witness' testimony.
The trial judge found that the respondent and Ms Marshall entered the room, positioned themselves on either side of the bed, the pillows were removed as both witnesses said and that Mr RJ rolled onto his back. The trial judge's findings were that:
When Ms McMurtrie bent forward and commenced to untuck the draw sheet, Mr RJ either woke or became alert. He instantly swore at her by saying 'What the fuck are you doing, put it back' and lashed out with his right arm. I conclude that the movement was outward and downwards onto the drawsheet. I conclude that the words 'put it back' suggest that Mr RJ was objecting to the draw sheet being used and he is therefore more likely to have slammed down onto the draw sheet to prevent it from being used. This is also consistent with what Ms Marshall described in her evidence. However, I accept that Ms McMurtrie may have misinterpreted Mr RJ's movements as being an attempt to lash out at her. I find that at the time she was bent over the edge of the bed to untuck the draw sheet and her head was only 30 cm from the edge of the bed. At the time the lighting was poor. I accept the evidence of Ms McMurtrie that the light was not switched on as they did not wish to wake Mr RJ [86.13].
Thus, on the issue about whether Mr RJ hit out 'towards the [respondent's] face' as the statement of claim alleged, and as the respondent testified or 'moved his arm onto the draw sheet' as Ms Marshall testified, the trial judge preferred Ms Marshall's evidence. The trial judge found that Mr RJ did not hit out at the respondent but his 'movement was outward and downwards onto the draw sheet'. The trial judge found that the respondent was bent over with her head 'only 30 cm from the edge of bed', this being implicit acceptance of the respondent's evidence and rejection of the evidence of Ms Marshall who said that the respondent was standing upright at the time of the movement.
The existence of a duty of care
The appellant owed a duty of care to its employees to take reasonable care to avoid exposing the respondent, as one of the appellant's employees, to unnecessary risk of harm or injury.
The issue about the scope of the duty of care and the alleged breach of the duty
The issue raised on this appeal is about the scope of the appellant's duty of care and whether that duty had been breached. The trial judge noted that the issue as to the scope of the duty and the question of whether there had been a breach of duty is often considered together in cases where a recognised duty of care such as this exists in the relationship between employer and employee. The trial judge cited Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 [21] and Sheather v Country Energy [2007] NSWCA 179 [20] ‑ [23].
The respondent's pleaded case
Paragraphs 3 and 6 of the statement of claim read:
3.There were implied terms of the Plaintiff's contract of employment referred to in paragraph 2.3 herein and/or it was the duty of the Defendant and/or the Defendant was under a statutory duty pursuant to Section 19 and/or 22 of the Occupational, Safety and Health Act 1987 ('the OS & H Act'), so far as practicable, inter alia:
3.1to provide and maintain for the Plaintiff a system of work such that she would not be exposed to anything which might result in injury or harm her health;
3.2not to expose the Plaintiff to any risk of damage or injury of which it knew or ought to have known;
3.3to provide information, instruction and training to the Plaintiff to enable her to perform her work without being exposed to anything which might result in injury or harm her health.
…
6.The accident was caused by the negligence and/or breach of contract of the Defendant and/or by breach of the statutory duty owed by it to the Plaintiff pleaded in paragraph 3 herein in that:
6.1It failed, despite having the knowledge or ought to having had the knowledge pleaded in paragraph 4 herein, to warn the Plaintiff on or before the material date of RJ's temperament and his past history and hence pre‑disposition towards aggression towards it workers;
6.2It failed to take any or any appropriate measures to control RJ's behaviour following the events pleaded in paragraph 4 herein, to avoid their recurrence on the material date;
6.3It failed to have in place a system for ensuring that the Plaintiff was provided background information, in the course of 'hand over', concerning the character of its residents (and any issues concerning such residents that may present a danger to her health, including RJ's pre‑disposition to aggression towards its staff), who she was obliged to care for, in the course of her work, including RJ;
6.4It failed to devise and instruct the Plaintiff as to a means by which she could turn RJ on the material date without requiring her to be in close proximity to him, so as to avoid the risk that he could (as he did, as pleaded in paragraph 5 herein) threaten her physically.
The trial judge's findings - scope of duty and breach of duty
The trial judge made his finding about the scope of the duty of care at [112]. His Honour said that applying the 'Shirt formula' (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40) (Wyong) a reasonable person in the appellant's position would have foreseen that a failure to warn the respondent of an incident of prior aggressive physical conduct by Mr RJ 'involved a risk of injury to her' [112].
The trial judge continued:
The risk was that she would not exercise sufficient care to avoid any physical aggression by Mr RJ. I conclude a reasonable response required the defendant to alert nursing assistants of the Siharath incident either by ensuring that they were shown the entry in the Integrated Progress Notes or ensuring they were orally warned of the prior incident. The magnitude of the risk of injury and the degree of probability of its occurrence were sufficient in my opinion to warrant the plaintiff, Ms McMurtrie and other nursing assistants being warned [112].
The trial judge made the following finding about the breach of the duty, being the failure to warn. His Honour said at [110] that pars 6.1 and 6.3 of the pleaded grounds of negligence both relate to the issue of the appellant failing to warn the respondent of the 'prior aggressive behaviour of Mr RJ' and then said:
I conclude that the defendant failed to warn Ms McMurtrie of the prior incident of physically aggressive behaviour of Mr RJ involving Mr Siharath. Further, the information was material and the defendant ought to have done so. Accordingly, I conclude that the defendant was negligent as pleaded in par 6.1 of the statement of claim. Further, I conclude that the defendant was negligent and in breach of its duty of care by not having in place a system whereby nursing assistants were warned of the prior physically aggressive behaviour known to management on the part of Mr RJ. As stated in my findings above, there was no system in place to ensure that the nursing assistants were alerted to entries in the Integrated Progress Notes which recorded such incidents. Further, the system of informing staff of incidents at shift changes only operated to inform staff of an incident that had occurred in the previous shift. There was no system in place to inform subsequent shifts of any incident occurring. The fact that there was no adequate system in place is confirmed by the evidence of Ms Bloodworth and Ms Marshall that they were not aware of the prior incident involving Mr Siharath [111].
The trial judge said at [114] that the plea in par 6.4 about the failure to devise and instruct the respondent as to the means by which she could turn Mr RJ was an allegation which was 'subsumed in the issue as to whether the [respondent] ought to have been warned'. In short, the scope of the duty was to warn the respondent of the earlier incident concerning Mr Mr Siharath. By the notice of contention, the respondent also alleges that the respondent should have been warned about the incident involving Ms Wynne.
The trial judge's findings - causation
The trial judge directed himself by reference to the 'two‑step approach' referred to in City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155 [73] McLure JA (Steytler P and Roberts‑Smith JA agreeing), which is to apply the 'but for' test and then to ask the further question whether the defendant is in law causally responsible for the damage. His Honour stated that if the respondent had:
[K]nown of the earlier incident of physical aggression involving Mr Siharath then this would have impressed upon her the need to exercise additional caution and it is likely she would have exercised additional caution [and that] … it is likely that she would not have placed herself in the precarious position of bending forward close to Mr RJ in order to untuck the draw sheet [and that] … if she had not placed herself so close to Mr RJ she would not have sensed that she was about to be hit and lurched backwards suddenly in order to avoid being hit' [116].
The trial judge recognised that the passing of the 'but for' test was not sufficient and said the 'next issue' was whether the defendant was causally responsible in law and whether the:
[S]udden lurching upwards and backwards by [the respondent] to avoid a perceived blow by Mr RJ when Mr RJ had made a sudden arm movement to clamp down on the draw sheet, was 'within the area of foreseeable risk'. That is, a foreseeable risk of injury from [the appellant] failing to warn [the respondent] of Mr RJ's prior act of physically aggressive behaviour towards Mr Mr Siharath during a turn procedure [117].
His Honour said:
In my opinion the sudden arm movement of Mr RJ, which involved an outward and downward movement to clamp down on the draw sheet, was an act of physically aggressive behaviour by Mr RJ. It was something more than mere verbal abuse. It involved a physical movement which was designed to interfere with Ms McMurtrie carrying out her duties of turning him. In my opinion it was of a nature that a risk of injury arose to the plaintiff which was 'within the area of foreseeable risk' arising from a failure to warn the plaintiff, Ms McMurtrie, of an earlier act of physically aggressive behaviour. This, in my opinion, accords with the common sense approach referred to in March v E & MH Stramare Pty Ltd (supra) given that a number of witnesses agreed it was important that nursing assistants be informed of earlier physically aggressive acts of Mr RJ. The logical extension of this is that without such knowledge nursing assistants were placed at a disadvantage and likely to place themselves into situations where injuries could occur.
Accordingly, I find that the defendant was negligent by failing to warn Ms McMurtrie of the earlier incident involving Mr Siharath and this failure to warn was causative of her injuries [118] ‑ [119].
Grounds of appeal
The appellant's grounds of appeal read:
Ground 1 - Inadequate reasons for factual findings
1.The learned trial judge erred in law in failing to give adequate reasons for two fundamental factual findings, in circumstances where there was conflicting evidence. The factual findings were:
1.1Ms McMurtrie was bent over, and
1.2Ms McMurtrie lurched backwards.
Ground 2 - Breach of duty of care
2.The learned trial judge erred in fact in finding that the appellant breached its duty of care, by finding that the appellant ought to have warned Ms McMurtrie of a prior incident of alleged aggressive physical conduct by the patient 'RJ', in circumstances where:
2.1the prior incident was of a minor and isolated nature;
2.2the magnitude of the risk of injury was low;
2.3the probability of its occurrence was negligible; and
2.4any warning would have been ineffective.
Ground 3 - Inadequate reasons for finding of breach
3.The learned trial judge erred in law in failing to give adequate reasons for finding that the appellant ought to have warned Ms McMurtrie of a prior incident of alleged aggressive physical conduct by RJ, and thereby finding that the appellant breached its duty of care.
Ground 4 - Causation
4.The learned trial judge erred in fact in finding that a failure to warn of a prior incident of alleged aggressive physical conduct by RJ caused the alleged injury.
Notice of contention
The respondent seeks to support the trial judge's decision by contending that the conclusion that the appellant had a duty to warn the respondent of the risk of 'physical aggression' on the part of RJ was reinforced by the further assault on Ms Wynne in April 2001; the appellant's awareness of dissatisfaction by Mr RJ with the use of the draw sheet; and the evidence of persistent rude and verbally aggressive behaviour by Mr RJ. The respondent also contends that once the trial judge found that the respondent's injury arose within 'an area of foreseeable risk' he ought to have found that the appellant came under an evidentiary onus of demonstrating that the breach had no effect and the appellant failed to discharge such evidentiary onus.
Ground 1
Ground 1 alleges that the trial judge erred in law in failing to give adequate reasons for the findings that the respondent was bent over when Mr RJ made his arm movement and that she lurched backwards. Ms Marshall testified that she observed the respondent and that she was not bending over but standing when Mr RJ made his arm movement. Ms Marshall also testified that the respondent did not lurch backwards. His Honour expressly mentioned Ms Marshall's evidence that she did not see the respondent lurch backwards, but his Honour made no mention of Ms Marshall's evidence that the respondent was standing and not bending over. There was therefore a contest between the respondent and Ms Marshall about whether the respondent was bent over with her head close to Mr RJ's arm and whether she lurched back. The appellant submits it was necessary for the trial judge to resolve the conflict by referring to the contest. I agree that the contest went to an important issue because if the respondent was not bent over with her head close to Mr RJ's arm, then she had no reason to think that Mr RJ could strike her.
The appellant submits that the failure to mention Ms Marshall's evidence that she observed the respondent and that she was not bent over, leaves the impression that Ms Marshall's evidence was overlooked by the trial judge. The appellant refers to Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 where the court made the following observations:
Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443 [28].
It is clear from [86.15] that his Honour preferred the evidence of the respondent in relation to what she was doing when Mr RJ moved his arm. His Honour found that she lurched back. His Honour was of course entitled to prefer the evidence of the respondent, but the concern is that he did not refer at all to Ms Marshall's very firm evidence that the respondent was not bent over at all when Mr RJ moved his arm.
Although Ms Marshall's evidence revealed some inconsistencies, this did not lead his Honour to reject Ms Marshall's evidence in its entirety. Indeed, on the critical point about whether Mr RJ lashed out at the respondent's face or whether he moved his arm in an endeavour to hold down the draw sheet, the trial judge believed Ms Marshall rather than the respondent. It was therefore necessary for his Honour to at least mention Ms Marshall's evidence that the respondent was not bent over. Having failed to mention it gives rise to the legitimate concern of the appellant that the evidence was overlooked. It was not necessary to give a detailed account of what Ms Marshall said, but it was necessary for his Honour to at least have recorded the fact that Ms Marshall's evidence was directly at variance with the respondent's evidence on this critical point.
The point at issue was critical and Ms Marshall's evidence was important because on the respondent's evidence she lurched back to avoid being hit in the face by Mr RJ when she was bending over to untuck the draw sheet. Ms Marshall's evidence was even more important because of an inconsistency in the respondent's evidence. At one stage, when being cross‑examined about the incident itself, the respondent said she had to bend over in order to untuck the draw sheet (ts 41) and yet earlier in her evidence, when dealing with the subject of what she would have done if she had been warned about the earlier incident, she testified that she would have been able to carry out the task without bending over and placing her head close to the side of the bed (ts 23). In my opinion, the trial judge erred in law in failing to refer at all to Ms Marshall's important evidence that the respondent was not bending over when Mr RJ moved his arm. As a result, I would uphold ground 1.
Ground 2
It is clear from the content of this ground and the submissions that, like the trial judge, the appellant is dealing compendiously with the issue of scope of duty and breach and challenging his Honour's conclusions in relation to both.
In relation to the scope of duty of care, Gummow and Hayne JJ said in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540:
[A] duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying with some precision what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs ACJ observed in 1924, '[N]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done' [192].
Their Honours referred to Wyong as providing a reference to the considerations which have to be considered. Wyong has been reaffirmed by the High Court in New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486. In Wyong, Mason J said at 48 that:
[T]he existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
His Honour said:
[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position (47 ‑ 48).
The respondent submitted that the cost of giving a warning would have been slight as measured against the risk of injury.
However, in Fahy at [57] Gummow and Hayne JJ said that what is sometimes referred to as the 'Shirt calculus' (a description which may mislead) is not to be understood as 'requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury'. Their Honours noted that:
Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury [57].
See also Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 [5] and Shire of Gingin v Coombe [2009] WASCA 92; (2009) 52 MVR 382 [43] ‑ [47] Martin CJ (Miller JA agreeing). In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (Vairy) Hayne J at [124] and Gummow J at [60] ‑ [61] said that:
The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'.
The essence of the appellant's submissions is that applying Wyong , any reasonable employer would have assessed the magnitude of the risk of injury as being very low and would not have felt the need to give any warning to staff. The appellant points to the fact that Mr RJ had been a patient since 1969, he had been turned twice a night for over 30 years and there had been only one incident involving Mr Siharath (or two taking into account the incident with Ms Wynne) where Mr RJ had deliberately come into contact with a nurse or a nursing assistant. In neither case had there been any injury. At the appeal hearing the appellant submitted, in effect, that there having been no evidence of any injury, then a reasonable employer would have assessed the magnitude of the risk of injury as being very low and requiring no warning to be given.
It may be noted that his Honour formulated the scope of the duty of care as a duty to warn of the prior incident involving Mr Siharath. In Fleming JG, The Law of Torts (9th ed, 1998), the author points out that negligence:
[C]onsists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger but, if the remotest chance of mishap was sufficient to attract the sigma of negligence, most human action would be inhibited. Inevitably, therefore, one is only required to guard against those risks which society recognises as sufficiently great to demand precaution (127).
The respondent, in oral submissions, contended that the trial judge's findings were correct and stressed that there would have been no cost involved in giving the warning, taking into account the injury which could be suffered. That submission must be rejected for the reasons given by Gummow and Hayne JJ identified in Fahy at [57]. Merely to make a comparison between what it would have cost to avoid the injury compared with the consequences of the injury is not sufficient. As their Honours said, Shirt's case requires a more elaborate inquiry.
A particularly important piece of evidence in this case is the evidence of Ms Knight, who investigated the incident concerning Mr Siharath. Ms Knight concluded (and his Honour accepted her conclusion) that the force used by Mr RJ in that incident was 'minimal' (ts 278). His Honour noted that Ms Knight's conclusion was reached based on the fact that no reported injury was suffered and further she accepted Mr RJ's description of the incident which was that he had simply slapped Mr Siharath. His Honour noted at [86.8] that Ms Knight 'implemented a change to the procedure of dealing with Mr RJ by requiring all future turns of Mr RJ were to be conducted by two staff officers'. His Honour then said at [86.9]:
I find the response by Ms Knight in relation to the Siharath incident in terms of attempting to modify Mr RJ's behaviour was appropriate and reasonable in the circumstances. I find that no further action at that point of time in relation to Mr RJ was appropriate. The alleged contact with Mr Siharath was an isolated incident.
The significance of this is not merely that Ms Knight considered that no additional action was necessary other than to change procedures, but it is his Honour's finding that her response was reasonable. Ms Knight did not respond to the incident by requiring a warning to be given to all staff. The trial judge's finding that this response was reasonable sits uncomfortably and in my opinion, irreconcilably so, with his Honour's later conclusion after applying the 'Shirt formula' that:
A reasonable person in the defendant's position would have foreseen that a failure to warn [the respondent] of an incident of prior aggressive physical conduct by Mr RJ involved a risk of injury to her [112].
His Honour's finding that the incident with Mr Siharath warranted no action other than requiring two members to attend to Mr RJ, who was known to be verbally abusive, supports the conclusion that the trial judge erred in concluding that:
(a)the incident involved a risk of injury;
(b)a reasonable response required the defendant to alert nursing assistants of the Siharath incident; and
(c)'['t]he magnitude of the risk of injury and the degree of probability of its occurrence were sufficient in my opinion to warrant the plaintiff Ms McMurtrie and other nursing assistants being warned'. See [112].
There is an additional factor which is also relevant to the question about whether or not the appellant was obliged to give a warning to the respondent and that arises out of the fact that Ms Brown gave evidence that not long before 24 May 2001, she had given an instruction to the respondent that she was not to enter Mr RJ's room. This instruction was given because, as already mentioned Ms Brown had formed the view that the respondent was not following protocol. The trial judge found that Ms Brown gave such an instruction. His Honour therefore rejected the respondent's evidence that she had never been given such an instruction. See [86.11].
This evidence is relevant because a defendant's duty of care must be shown to be owed to the individual plaintiff, even though the duty may be proved to exist by showing that the defendant owed a duty of care to a class of persons of whom the plaintiff was one: Vairy [6] (Gleeson CJ and Kirby J), [122] (Hayne J) and Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52; (2006) Aust Torts Reports 81‑840 [32] (McLure JA) and [102] (Pullin JA, Roberts‑Smith JA agreeing). The class of persons owed the duty in this case, if it existed, would have been owed to nursing assistants whose job it was to attend to Mr RJ. The respondent was not in that class because she had been given an instruction not to attend to Mr RJ because of the respondent's failure to follow the protocol.
However, even if the reason for concluding that no warning had to be given is incorrect, it is my opinion that this ground of appeal must be upheld. The incident involving Mr Siharath (and the incident involving Ms Wynne) were minor and isolated incidents which had produced no harm or injury at all and the probability of injury was so slight that no reasonable employer in the position of the appellant would have considered it necessary to issue a warning to nursing assistants of the kind referred to by the trial judge. For those reasons, I would uphold ground 2.
Ground 3
I would dismiss ground 3. His Honour gave satisfactory reasons why he concluded that the warning ought to have been given.
Ground 4
Ground 4 alleges that the trial judge erred in fact in finding that a failure to warn of the Mr Siharath incident caused the alleged injury.
The question of whether a failure to warn of a material risk was causative of the respondent's injury involves two distinct levels of inquiry. The first is the application of the 'but for' test which is a negative screen and the second inquiry is to determine whether there is a 'causal connection, in the legal sense, between the failure to warn of the material risk and the occurrence of the injury': Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [83] and [84] (Gummow J); City of Stirling v Tremeer [73]. The second level of inquiry involves a normative decision as to whether, for the purposes of the case, the defendant's act is causal of the plaintiff's injury or harm: Barnes v Hay (1988) 12 NSWLR 337, 353 (Mahoney JA). Cases involving a failure to warn of a risk encounter difficulties that do not arise where there has been a negligent physical act causing the injury. A hypothetical inquiry is necessary because direct perception cannot provide the answer to causation in negligent omission cases: Rosenberg at [45]. See Fleming JG, The Law of Torts (9th ed, 1998) 220.
If there is a failure to warn of a risk, but that risk did not eventuate, then the negligent failure to warn will not have caused the injury or harm. Thus, in Rosenberg, Gummow J at [83] referred to the example given in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, 257 [66] of a medical practitioner failing to warn of a material risk of damage to her 'laryngeal nerve' and an injury occurring as a result of a misapplication of anaesthetic. The medical practitioner would not be liable despite the fact that the patient would not have had the treatment and therefore would not have suffered the injury if the patient had been warned of the risk to her laryngeal nerve. The application only of the 'but for' test would lead to an unacceptable result in that example because if only that test was applied, then the medical practitioner would have been held liable.
The respondent was not injured by Mr RJ striking her or trying to strike her. Assuming for this purpose that it was possible for the respondent to untuck the draw sheet without bending with her head close to the bed then 'but for' the failure to warn about the Siharath incident, the respondent would have avoided the injury. However, responsibility for the respondent's injury should not be attributed to the appellant because, in my opinion, the injury and the warning are not related. The injury was caused by the sudden movement which followed from the respondent's misinterpretation of what was happening. The warning which should allegedly have been given was to be aware that Mr RJ might assault or attempt to assault nursing assistants. Even if there had been duty and a breach of the duty to warn of the danger of harm or injury from an assault or an attempted assault by Mr RJ because of the earlier incidents, the breach of that duty did not cause the injury to the respondent. This follows from the finding that there was no attempt made by Mr RJ to assault the respondent. The injury was caused by a movement made by the respondent to avoid what she misinterpreted to be an attempted assault. Gummow J in Rosenberg at [86], speaking of the obligation upon medical practitioners adequately to warn their patients of the consequences of treatment they are contemplating, said that if a medical practitioner should fail to warn a patient of a particular consequence 'and that consequence in fact eventuates then, subject to the question of materiality, the rule seeks to hold the medical practitioner liable for that consequence'. In this case, the suggested warning was a warning that Mr RJ might assault or attempt to assault nursing assistants with consequent injury or harm. However, the event and its consequence never eventuated.
Further, the trial judge found that the respondent was bending over to untuck the draw sheet and the respondent's evidence was that she had to bend over to untuck the draw sheet. If that is correct, then a warning would have made no difference, because the respondent would not have been able to carry out the task of untucking the sheet without bending down. As McHugh J said at [32] in Chappel:
[A] defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action.
See also Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 420 (Gaudron J) and Rosenberg (Gummow J) at [86].
For those reasons the trial judge erred in concluding that the failure to give the alleged warning caused the injuries. Ground 4 should therefore be upheld.
The respondent's notice of contention
Even taking into account Ms Wynne's evidence, the judgment cannot be sustained as explained above. The evidence of rude and verbally aggressive behaviour and evidence of Mr RJ's dissatisfaction with the use of a draw sheet do not sustain the judgment.
The contention that the respondent's injury arose 'within the area of foreseeable risk' cannot be sustained in view of the conclusion set out in relation to grounds 2 and 4.
Conclusion
The result is that grounds 1, 2 and 4 should be upheld. Ground 3 should be dismissed. The respondent's notice of contention should be dismissed. The appeal should be allowed and the judgment set aside. If only ground 1 had been upheld, it would have been necessary to order a retrial but because grounds 2 and 4 have been upheld there should be judgment dismissing the respondent's claim against the appellant.
BUSS JA: After a trial in the District Court, Sleight DCJ entered judgment against the appellant (as defendant) in proceedings brought by the respondent (as plaintiff) for damages in respect of personal injuries suffered by her.
At all material times, the appellant carried on business as a provider of residential facilities and care at the Quadriplegic Centre for people with serious disabilities. The residents included Mr RJ, a quadriplegic, who has lived at the Centre since 1969.
At all material times, the appellant employed the respondent as a nurse's assistant at the Quadriplegic Centre.
In the District Court proceedings, the respondent alleged that at about 2.00 am on 24 May 2001 she was injured in the course of her employment. She maintained that her injuries were caused by the negligence, further or alternatively the breach of contract, further or alternatively the breach of statutory duty, of the appellant as her employer. The quantum of damages was agreed. The trial related to liability only. The trial judge held that the appellant had been negligent. His Honour also held that the respondent had been guilty of contributory negligence and, as a result, reduced the agreed quantum of damages by 20%.
The appellant appeals against the trial judge's finding of negligence. There is no challenge to the finding of contributory negligence or the amount by which his Honour reduced the respondent's damages.
The background facts, the pleaded issues at trial, the trial judge's findings, the grounds of appeal and the grounds of the notice of contention are set out or summarised in Pullin JA's reasons (with whom Newnes JA proposes to agree). I will not repeat them except to the extent necessary to explain these reasons.
The relevant principles of appellate review
Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:
The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].
The requirements and limitations of a rehearing of the kind which occurs before this court were explained by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:
The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact‑finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'.
The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] ‑ [17]. (footnotes omitted)
It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [88]. As Kirby J observed in CSR:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] ‑ [22]. (footnotes omitted)
Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman, 561; Fox v Percy [23].
Ground 1 of the appeal
I agree with Pullin JA, for the reason he gives, that ground 1 of the appeal has been made out.
Ground 2 of the appeal
Ground 2 of the appeal reads:
The learned trial judge erred in fact in finding that the appellant breached its duty of care, by finding that the appellant ought to have warned [the respondent] of a prior incident of alleged aggressive physical conduct by the patient 'RJ', in circumstances where:
2.1the prior incident was of a minor and isolated nature;
2.2the magnitude of the risk of injury was low;
2.3the probability of its occurrence was negligible; and
2.4any warning would have been ineffective.
At common law an employer owes a duty to its employees to take reasonable care for their safety, in the absence of statutory provisions to the contrary. This duty includes an obligation to take reasonable steps to provide a safe system of work. See Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).
An employer's common law duty to take reasonable care for the safety of its employees requires the employer, relevantly, to exercise reasonable care to avoid a foreseeable risk of injury to its employees in the course of their employment.
An employer's obligation in relation to a safe system of work involves the taking of reasonable steps to establish, maintain and enforce such a system. See McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan & Dawson JJ).
The duty of an employer is owed to each employee as an individual. See Paris v Stepney Borough Council [1951] AC 367, 375 (Lord Simonds), 380 (Lord Normand); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [6] (Gleeson CJ & Kirby J), [122] (Hayne J).
A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617, 641 ‑ 643. The test of reasonable foreseeability, as stated in Shirt, must be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [54] (Callinan J); Vairy [213] (Callinan & Heydon JJ).
It is unnecessary that a defendant should have foreseen the precise risk of injury or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).
In State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, there was discussion as to whether the correctness of Shirt (in particular, the well-known statement of principle by Mason J) should be reconsidered. The Court decided that the circumstances of the case before them did not require reconsideration of Mason J's statement of principle. Gleeson CJ said:
There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance. Complaints about failure to warn seem to give rise to problems of that kind. There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life's hazards is to do nothing (cf Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Neindorf v Junkovic (2005) 80 ALJR 341; 222 ALR 631; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 425 ‑ 427 [2] ‑ [8]). If it were otherwise, we would live in a forest of warning signs. That, however, does not warrant reconsideration in this case of what was said by Mason J. In cases where the principles have been misapplied, that may have been the result of a failure to read the most frequently quoted passage in the context of the whole of Mason J's judgment [7].
Gummow and Hayne JJ stated that there was no occasion, in the case before them, to reconsider the correctness of Shirt [78]. Their Honours added:
It is as well to say, however, that no persuasive argument was mounted in this case for the view that Shirt should now be reconsidered (John v Federal Commissioner of Taxation (1989) 166 CLR 417; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 71 [55], 101 ‑ 106 [152] ‑ [167]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 38 at 45 [38]). It is a decision that has stood for more than twenty‑five years and has been applied frequently both in courts of trial and appeal and in this Court. There may be cases when the principles stated in Shirt have not been applied accurately. In particular, arguments of the kind made, and rejected, in Vairy and in Mulligan v Coffs Harbour City Council ((2005) 223 CLR 486) may suggest a misunderstanding of the so-called 'calculus' that would seek to determine questions of breach in some cases by balancing the cost of a single warning sign against the catastrophic consequences of a particular accident. But the fact, if it be so, that Shirt has not always been applied properly does not provide any persuasive reason to reconsider its correctness [78].
Kirby J held that Shirt correctly states the law and that the formulation enunciated by Mason J should not be re-expressed [129] ‑ [133]. Crennan J said that the case before the Court did not provide an opportunity to consider whether the test in Shirt, that a reasonable risk is one which is not 'far-fetched or fanciful', is too 'undemanding' [241].
The standard of care (that is, the measure of the discharge of the duty of care) applicable to an employer is what, if anything, a reasonable person in the employer's position would have done by way of response to the foreseeable risk that its employees may suffer injury as a result of a particular act, omission or circumstance.
The standard of care required in relation to each employee must be determined having regard to the facts and circumstances applicable to that employee and his or her employment of which the employer knows or should know. See Illawarra Area Health Service v Dell [2005] NSWCA 381 [114].
The determination of what, if anything, a reasonable person in the employer's position would have done involves an assessment of what would have been reasonable and practicable for the employer to have done. This enquiry is not to be undertaken in hindsight. See Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93] (Hayne J); Vairy [126] ‑ [129] (Hayne J); Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [50] (Hayne J). It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. See Fahy [57]. As Gummow and Hayne JJ explained in Fahy [58]:
It is only if the examination of breach focuses upon 'what a reasonable man would do by way of response to the risk' (Shirt (1980) 146 CLR 40 at 47) (emphasis added) that it is sensible to consider 'the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have' (Shirt (1980) 146 CLR 40 at 47 ‑ 48).
Issues of breach and causation in an action for personal injuries are interrelated. See Illawarra Area Health Services [83] ‑ [84].
Contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. See Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 309 (Mason, Wilson & Dawson JJ).
Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ); Mulligan [3] (Gleeson CJ & Kirby J); Fahy [7] (Gleeson CJ). The occurrence of a foreseeable risk does not establish unreasonableness. See Illawarra Area Health Services [85].
In the present case, the trial judge's findings in relation to breach of duty were, relevantly, these:
Although, I conclude that [the appellant] had a duty of care to take appropriate measures to control the behaviour of Mr RJ, I conclude that the steps taken by the Quad Centre against Mr RJ were appropriate and reasonable in the circumstances. In my opinion the Quad Centre had an appropriate system in place for restraining unacceptable behaviour of residents. Further, the response to the Siharath incident was in accordance with the Quad Centre's system and was appropriate, given the minor nature of the alleged assault and the fact that it was an isolated incident in the context of the number of times that staff needed to turn Mr RJ in his bed or provide him with other essential services. Prior to 24 May 2001, management was not aware of the Ms Wynne incident as she had inadvertently failed to report this incident. Accordingly, I dismiss [the respondent's] claim based upon this alleged ground of negligence.
Paragraphs 6.1 and 6.3 of the pleaded grounds of negligence contained in the statement of claim both relate to the issue of [the appellant] failing to warn [the respondent] of the prior aggressive behaviour of Mr RJ. The evidence of Ms Bloodworth was that she believed an incident of an assault on staff by Mr RJ was a serious matter and staff should have been warned of any such incident and told to be careful. The evidence of Ms Bloodworth that staff should be told of such an incident was supported by Ms Prime, Ms Starcevich, Ms Marshall and Ms Knight. Ms Marshall stated that if she had known of a prior incident of physical aggression by Mr RJ, she probably would have been more careful going into Mr RJ's room.
I conclude that [the appellant] failed to warn [the respondent] of the prior incident of physically aggressive behaviour of Mr RJ involving Mr Siharath. Further, the information was material and [the appellant] ought to have done so. Accordingly, I conclude that [the appellant] was negligent as pleaded in par 6.1 of the statement of claim. Further, I conclude that [the appellant] was negligent and in breach of its duty of care by not having in place a system whereby nursing assistants were warned of the prior physically aggressive behaviour known to management on the part of Mr RJ. As stated in my findings above, there was no system in place to ensure that the nursing assistants were alerted to entries in the Integrated Progress Notes which recorded such incidents. Further, the system of informing staff of incidents at shift changes only operated to inform staff of an incident that had occurred in the previous shift. There was no system in place to inform subsequent shifts of any incident occurring. The fact that there was no adequate system in place is confirmed by the evidence of Ms Bloodworth and Ms Marshall that they were not aware of the prior incident involving Mr Siharath.
Applying the Shirt formula I conclude that a reasonable person in [the appellant's] position would have foreseen that a failure to warn [the respondent] of an incident of prior aggressive physical conduct by Mr RJ involved a risk of injury to her. The risk was that she would not exercise sufficient care to avoid any physical aggression by Mr RJ. I conclude a reasonable response required [the appellant] to alert nursing assistants of the Siharath incident either by ensuring that they were shown the entry in the Integrated Progress Notes or ensuring they were orally warned of the prior incident. The magnitude of the risk of injury and the degree of probability of its occurrence were sufficient in my opinion to warrant [the respondent] and other nursing assistants being warned [109] ‑ [112].
In my opinion, the trial judge's finding of breach was erroneous and should be set aside. My reasons for that opinion are as follows.
First, there is a critical and irreconcilable inconsistency between the trial judge's finding that the appellant's response to the Siharath incident was appropriate 'given the minor nature of the alleged assault and the fact that it was an isolated incident in the context of the number of times that staff needed to turn Mr RJ in his bed or provide him with other essential services' [109] and his finding that 'a reasonable response required the [appellant] to alert nursing assistants of the Siharath incident either by ensuring that they were shown the entry in the Integrated Progress Notes or ensuring they were orally warned of the prior incident' [112].
Secondly, there is no doubt, on the evidence, that the Siharath incident was minor. The force used by Mr RJ against Mr Siharath was minimal [86.8]. No injury was suffered. Indeed, there was not even a mark on his skin (ts 278).
Thirdly, there is no doubt, on the evidence, that the Siharath incident was isolated in the context of the number of times that staff at the Quadriplegic Centre had turned Mr RJ in his bed or provided him with other essential services. Mr RJ had been a patient at the Centre since 1969. He was turned (at least) twice during each nightshift (ts 35, 240). Before 24 May 2001, the management of the appellant did not know of any other incident involving violence by Mr RJ [86.10].
Fourthly, Mr RJ was a quadriplegic with only some limited capacity to move his upper limbs. He could move his shoulders and elbows, but with less force than an able‑bodied adult (ts 143 ‑ 146). He had muscle wasting in his forearms and he could not make a fist with his hands (ts 148). He had no useful movement in his hands or wrists (ts 153). The trial judge found that Mr RJ was, however, capable of making 'a sudden movement outwards and downwards onto the draw sheet' [86.14]. It is apparent, upon weighing all of the evidence as to Mr RJ's capacity, that the magnitude of the risk of his injuring a nursing assistant or other employee of the appellant was very low.
Fifthly, the Siharath incident involved a breach of protocol. On that occasion, after Mr RJ had been turned, he objected to his pillows being rearranged, and was swearing. In these circumstances, the protocol required Mr Siharath to leave the room. He did not comply with the protocol but, instead, asked Mr RJ to 'quieten down' (ts 246 ‑ 248, 271, 306). Mr RJ then hit Mr Siharath on the shoulder [86.5].
Sixthly, the appellant did not ignore the Siharath incident. It responded by warning Mr RJ that his conduct was unacceptable and, also, by implementing 'a change to the procedure of dealing with Mr RJ by requiring that all future turns of Mr RJ were to be conducted by two staff members' [86.8], with a view to ensuring, relevantly, that the protocol was observed. Ms Knight, who investigated the Siharath incident, concluded that Mr RJ had not intended to hurt or injure, but had 'flicked out at' or 'tapped' Mr Siharath to remind him that he was doing something wrong (ts 277, 322). The trial judge found that it was unnecessary for the appellant to enter into 'a contract of behaviour with Mr RJ containing a threat that if he did not improve his behaviour he would be expelled from the Centre' [86.9].
Seventhly, the issues of breach and causation in an action for personal injuries are inter‑related. As I explain in the course of considering ground 4 of the appeal, it was not open to the trial judge to conclude, on the balance of probabilities, that if a warning had been given then the respondent's injury would have been averted.
Eighthly, if the issue of breach is approached, as it must be, by looking forward to identify what a reasonable person would have done (and not backward to identify what would have avoided the particular injury suffered by the respondent), the facts and circumstances established by the evidence (in particular, the matters set out at [90] ‑ [94] above) did not reasonably require the appellant to provide a warning to the respondent, in the terms alleged by her or at all.
My opinion that the trial judge was in error in finding that the appellant had breached its duty to the respondent is based on conclusions drawn from facts that were undisputed or found by the trial judge. The error has been established without disturbing any credibility‑based findings.
Ground 2 has been made out.
Ground 3 of the appeal
Ground 3 of the appeal reads:
The learned trial judge erred in law in failing to give adequate reasons for finding that the appellant ought to have warned [the respondent] of a prior incident of alleged aggressive physical conduct by RJ, and thereby finding that the appellant breached its duty of care.
Ground 3 attacks the adequacy of the trial judge's reasons as distinct from their cogency or correctness. It was unnecessary for the trial judge's reasons for concluding that the appellant had breached its duty of care to be lengthy or elaborate. The reasons in question are set out at [111] ‑ [112]. See [87] above. In summary, his Honour found that a reasonable person in the appellant's position would have foreseen that a failure to warn the respondent of the Siharath incident involved a risk of injury to her; the risk was that the respondent would not exercise sufficient care to avoid any physical aggression by Mr RJ; the magnitude of the risk of injury and the degree of probability of its occurrence were sufficient to warrant the giving of the warning; and the information that would have been conveyed in the warning, as to the prior incident of physically aggressive behaviour by Mr RJ, was material to the respondent's employment. I am satisfied that these reasons adequately explain his Honour's conclusion.
Ground 3 is without merit.
Ground 4 of the appeal
Ground 4 of the appeal reads:
The learned trial judge erred in fact in finding that a failure to warn of a prior incident of alleged aggressive physical conduct by RJ caused the alleged injury.
An employer will be liable in negligence only if the injury which its employee has suffered was caused by the employer's negligent act or omission. In Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, McHugh J noted that if the evidence suggests that a defendant's negligent act or omission would have made no difference to the plaintiff's course of action, the defendant will not have caused the damage which the plaintiff has suffered [32]. The issue of causation requires the plaintiff to prove what would probably have eventuated had the defendant's negligence not occurred. This is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The test is subjective. See Chappel [32] (McHugh J), [93] (Kirby J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [24] (McHugh J).
It is not necessary that the employer's negligent act or omission be the sole cause of the employee's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); Chappel [27] (McHugh J).
A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg [44] (McHugh J).
Where an employer is under a duty adequately to warn its employee of a foreseeable risk of injury (including any necessary instructions as to the steps to be taken to avoid the risk), and the employer fails to warn (or give any necessary instructions) and the risk actually eventuates, then, subject to the question of materiality, causation requires satisfaction of two criteria. First, there must be a breach of the duty to warn of a material risk, that risk having eventuated and caused, in the physical sense, injury to the employee. Secondly, it must be established that, had the warning (including any necessary instructions as to the steps to be taken to avoid the risk) been given, the injury would have been averted. See Rosenberg [86] (Gummow J). The second criterion is a subjective one. The question is whether the particular employee would not have suffered the injury had the warning (including any necessary instructions) been given. See Rosenberg [87] (Gummow J).
In Chappel, McHugh J considered the interaction of the legal onus of proof and an evidentiary onus, in the context of causation, where there has been a negligent omission to warn of a risk. His Honour said:
[T]he onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff [34].
Similarly, in Chappel, Gaudron J commented:
The duty was called into existence because of the foreseeability of that very risk (See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422 per Gaudron J). The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe ((1945) 71 CLR 637 at 649), albeit in relation to a statutory duty, 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach' [8].
See also the observations in Chappel of Gummow J [68] and Kirby J [93].
It is well-established that a plaintiff's evidence as to his or her 'belief' as to what course he or she would have adopted if a particular warning had been given must be treated with caution. See Rosenberg, where Gleeson CJ said:
There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed . Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action [16]. (footnotes omitted)
This issue was also expounded upon by McHugh J in Chappel:
Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. For that reason, the restrictions on appellate review laid down in Abalos v Australian Postal Commission (1990) 171 CLR 167 and other cases are likely to have little application [32] fn (64).
In the present case, the trial judge's findings in relation to causation were, relevantly, these:
I find on the balance of probabilities that if [the respondent] had known of the earlier incident of physical aggression involving Mr Siharath then this would have impressed upon her the need to exercise additional caution and it is likely that she would have exercised additional caution. I conclude that it is likely she would not have placed herself in the precarious position of bending forward close to Mr RJ in order to untuck the draw sheet. I find that if she had not placed herself so close to Mr RJ, she would not have sensed that she was about to be hit and lurched backwards suddenly in order to avoid being hit.
The next issue is whether [the appellant] is in law causally responsible for the damage. Using the formula of Gaudron J in Bennett's case (supra), the issue is whether the sudden lurching upwards and backwards by [the respondent] to avoid a perceived blow by Mr RJ, when Mr RJ had made a sudden arm movement to clamp down on the draw sheet, was 'within the area of foreseeable risk'. That is, a foreseeable risk of injury from [the appellant] failing to warn [the respondent] of Mr RJ's prior act of physically aggressive behaviour towards Mr Siharath during a turn procedure.
In my opinion the sudden arm movement of Mr RJ, which involved an outward and downward movement to clamp down on the draw sheet, was an act of physically aggressive behaviour by Mr RJ. It was something more than mere verbal abuse. It involved a physical movement which was designed to interfere with [the respondent] carrying out her duties of turning him. In my opinion it was of a nature that a risk of injury arose to [the respondent] which was 'within the area of foreseeable risk' arising from a failure to warn [the respondent] of an earlier act of physically aggressive behaviour. This, in my opinion, accords with the common sense approach referred to in March v E & MH Stramare Pty Ltd (supra) given that a number of witnesses agreed it was important that nursing assistants be informed of earlier physically aggressive acts of Mr RJ. The logical extension of this is that without such knowledge nursing assistants were placed at a disadvantage and likely to place themselves into situations where injuries could occur [116] ‑ [118]. (emphasis added)
In my opinion, the trial judge's finding that causation had been established was, with respect, erroneous. I am of that opinion for these reasons.
First, the trial judge's finding that the respondent, if warned, would have acted differently when involved with the turning of Mr RJ is unsustainable. This finding was based on the respondent's evidence, in examination‑in‑chief, that if she had been warned about the Siharath incident she 'wouldn't have bent down to take out the draw sheet' but 'would have been standing back' (ts 23).
However, in the course of cross‑examination, the respondent insisted that it was necessary for her to bend forward in order to turn Mr RJ (ts 41). She added:
When you're turning the resident on the draw sheet, yes you stand straight. But I was untucking it at the time, which meant that I had to bend down to do that (ts 41).
On the basis of this evidence in cross‑examination, the warning contended for would have made no difference. In view of this fundamental conflict in the respondent's evidence, which the trial judge did not attempt to resolve, it was not open to conclude that the respondent had established that if the relevant warning had been given, the injury would have been averted.
Secondly, the pleaded risk in respect of which the respondent alleged a warning should have been given was, relevantly, the risk that '[Mr] RJ had acted aggressively towards members of the [appellant's] staff, seeking to strike out at them, whilst in the course of their work, caring for him': par 4.1 of the statement of claim. It was alleged by the respondent that this risk eventuated as she sought to untuck the draw sheet beneath Mr RJ, in order to turn him, in that Mr RJ, relevantly, 'hit out towards the [respondent's] face which was to the side of the bed, given she was untucking the draw sheet': par 5.3.2 of the statement of claim. It was then pleaded that, as a result of this action, the respondent 'lurched backwards and thereby sustained injury': par 5.4 of the statement of claim.
At all material times, the respondent knew that Mr RJ had a history of verbal aggression and that if woken while being turned he was likely to be verbally aggressive [13], [18], [86.1], [86.11] and [113]. Accordingly, on the basis of the respondent's pleaded case, the relevant risk in respect of which the warning was required was the risk of injury as a result of Mr RJ seeking to strike out at the respondent or other members of the appellant's staff.
The trial judge rejected the allegation that Mr RJ had deliberately attempted to strike the respondent [86.13]. Rather, he found that Mr RJ had merely moved his right arm outwards and downwards onto the draw sheet to prevent its use in turning him [86.13]. The risk pleaded in the statement of claim in respect of which the warning was required did not eventuate. That risk was therefore not causally relevant to her injury.
Counsel for the respondent submitted to this court that the respondent's case, as run at trial, was that Mr RJ attempted to strike the respondent by hitting out towards her face, alternatively, that Mr RJ hit downwards onto the draw sheet but without intending to strike the respondent (appeal ts 30, 36). Counsel said in his closing submissions at the trial:
I might say at the beginning that in my submission it makes little difference because, provided your Honour accepts, if you were to accept Shirley Marshall's version that the action by [Mr RJ] was an aggressive one, even if simply hitting down on the sheet rather than trying to strike [the respondent] then that is something, a form of behaviour I would submit that would fall within the type of aggressive physical conduct which we say [the appellant] should have, firstly, taking measures to restrict and secondly and perhaps most clearly, have warned [the respondent] about before the relevant events (ts 355).
Counsel for the respondent did not, however, in his opening submissions at the trial, put the respondent's case on this basis. Rather, he said, relevantly:
(a)'Particularly what is in issue is whether or not [the respondent's] injury resulted from an attempted assault on the part of a resident of the Quadriplegic Centre, a [Mr RJ]' (ts 4);
(b)'[The respondent] bent forward to untuck the draw sheet from underneath the mattress to [Mr RJ's] bed, when [Mr RJ], who had initially appeared to be asleep, swore aggressively at her and lashed out with his right upper limb towards her face' (ts 5 ‑ 6);
(c)'[The respondent's] case is that it was clearly foreseeable that in the event [Mr RJ] sought to strike a member of [the appellant's] staff, that he could inflict injury' (ts 6).
I am not persuaded that the respondent's case in relation to the relevant risk was run on a basis which broadened the pleaded risk (namely, that Mr RJ had acted aggressively towards members of the appellant's staff by seeking to strike out at them) or that at all material times the appellant knew and accepted (either expressly or by implication) that the pleaded issues between the parties in relation to the relevant risk had been broadened.
But, however this may be, the manner in which the respondent's case was run at trial does not affect the first reason for my opinion that the trial judge's finding on causation was in error.
Ground 4 has been made out.
Ground 1 of the notice of contention
Ground 1 of the notice of contention reads:
The trial judge's conclusion that the appellant had a duty to warn the respondent of the risk of physical aggression on the part of the relevant resident was reinforced by:
1.1The occurrence of the further assault by such resident upon the appellant's employee Dianne Wynne, in April 2001 (and prior to the incident the subject of these proceedings). Although not formally reported to the appellant's management until after the respondent's accident (R86.10, p27 ‑ 28), knowledge of the occurrence of such assault (and hence the increased probability of physical aggression on the part of the relevant resident) ought be imputed to the appellant from its servant Ms Wynne. The appellant should not be excused because of its servant's failure to report the occurrence of this further assault;
1.2the appellant being aware of ongoing dissatisfaction by such resident with the use of a draw sheet to turn him during the course of the night and hence the potential for anger and aggression on his behalf in relation to this particular work duty;
1.3the evidence of persistent rude and verbally aggressive behaviour by such resident towards the appellant's staff recorded in the appellant's integrated progress notes concerning him in late 2000 ‑ 2001, prior to 24 May 2001 (see exhibit 1, page 30 and 32).
The trial judge made these findings in relation to the incident involving the appellant's employee, Ms Wynne:
I find that prior to 24 May 2001 the management of the Quad Centre did not have any knowledge of any other incident involving violence by Mr RJ. After 24 May 2001 it was reported that there had been an incident in April 2001 when it was alleged that after Mr RJ had been turned and when a Ms D Wynne, was positioning pillows under him, he lashed out with his right hand. It was reported that there was little physical power when it connected with Ms Wynne [86.10].
His Honour also found that the appellant's employees had been instructed to report incidents involving physical aggression by patients [86.4].
On the assumption, favourable to the respondent, that Ms Wynne's knowledge in relation to the incident involving her and Mr RJ is to be attributed to the appellant (see, generally, North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240 [28] ‑ [39] (McColl JA); Nationwide News Pty Ltd v Naidu [2007] NSWCA 377;
(2007) 71 NSWLR 471 [41] ‑ [43] (Spigelman CJ)), the occurrence of this additional incident, either alone or in combination with the other matters referred to in pars 1.2 and 1.3 of ground 1 of the notice, does not materially affect my opinion that the trial judge's finding of breach was erroneous or my reasons for that opinion. See [88] ‑ [98] above. The weight to be accorded to the matters raised in ground 1 of the notice does not tilt the balance in favour of the respondent on the issue of breach.
Ground 2 of the notice of contention
Ground 2 of the notice of contention reads:
Upon the trial judge's finding that the respondent's injury arose 'within the area of foreseeable risk' arising from the appellant's breach by its failing to warn her of the resident's earlier physical aggressive behaviour, he ought to have found:
2.1the appellant became subject to an evidentiary onus of demonstrating that such breach had no effect, or that the injury would have occurred in any event;
2.2it had failed to discharge such evidentiary onus.
The matters raised by the respondent in ground 2 of the notice are without merit. They do not materially affect my findings or reasons in relation to causation in the context of ground 2 of the appeal. In particular, I found that it was not open to the trial judge to conclude that:
(a)the respondent had established that if the relevant warning had been given, the injury would have been averted; or
(b)the respondent's injury arose 'within the area of foreseeable risk' [118], as pleaded in her statement of claim.
The respondent failed to discharge her legal burden of proving causation. The appellant did not fail to satisfy any evidentiary onus.
Conclusion
I would allow the appeal, set aside the judgment entered by the trial judge, and dismiss the respondent's claim against the appellant.
NEWNES JA: I agree with Pullin JA.
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