Trout v Metropolitan Health Service Board - [2001] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TROUT -v- METROPOLITAN HEALTH SERVICE BOARD [2001] WADC 64

CORAM: MARTINO DCJ

HEARD: 1 & 2 MARCH 2001

DELIVERED : 22 MARCH 2001

FILE NO/S: CIV 1195 of 1999

BETWEEN: SUSAN ELIZABETH TROUT
Plaintiff
AND
METROPOLITAN HEALTH SERVICE BOARD
Defendant

Catchwords:

Negligence - Employer and employee - Duty of care - Safe system of work

Legislation:

Nil

Result:

Defendant not liable for first accident, defendant liable for second accident, no negligence by plaintiff.

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr M A McAuliffe

Solicitors:

Plaintiff: Paul O'Halloran
Defendant: McAuliffe Williams & Partners

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Case(s) also cited:

Western Australia v Watson [1990] WAR 248

MARTINO DCJ: The plaintiff claims damages for personal injuries alleged to have been suffered in two accidents in 1994. The action came on for hearing on the issue of liability alone. The defendant denied that it was negligent in either accident and further contended that each accident was caused or contributed to by the negligence of the plaintiff.
In 1994 the plaintiff was employed by the defendant as a registered general nurse and registered mid‑wife at the Swan District Hospital.
The plaintiff qualified as a registered nurse in 1978. She then did a mid‑wifery course at King Edward Hospital from 1978 to 1979 and qualified as a registered mid‑wife at the end of that course. She commenced working as a registered general nurse and registered mid‑wife at the Swan District Hospital in 1981. She took time from work to give birth to her children in 1989 and 1991. After the birth of her third child, she returned to work at the hospital and she was working there at the time of the accidents. In the time that she worked at the hospital the plaintiff worked mainly in the maternity ward.
The maternity ward had 29 beds and five birthing beds which were in rooms called birthing suites. Approximately 100 babies were born at the hospital per month. A clinical nurse specialist was in charge of the maternity ward. In 1994 that clinical nurse specialist was Magretta Wallis.
The first accident with which this action was concerned occurred on 29 November 1994. The plaintiff's evidence was that on that day she was working on a shift that commenced at 7.00 am and finished at 2.30 pm. She was in the nursery part of the maternity ward when she was told that a patient had collapsed in the garden area and was unconscious. She then ran outside of the nursery into the corridor. She met Susan Prout, another nurse, who was wheeling the unconscious patient in a wheelchair through the doors. Another nurse, Noelene Pritchard, arrived on the scene at approximately the same time.
The patient was unconscious, floppy (ie. not responsive to stimuli) and she was becoming cyanosed (blue around the lips).
The three nurses decided that the patient needed immediate oxygenation. Ms Prout was approximately 28 weeks pregnant and so most of the physical tasks involved in taking care of the patient were handled by the plaintiff and Ms Pritchard.
The plaintiff took over pushing the wheelchair and wheeled the patient straight into Birth Suite 5 as it was the closest birth suite and oxygen was available in the birth suites.
The plaintiff wheeled the patient into the birth suite and to the right side of the bed in the suite as close as possible to the oxygen outlet on the wall beside the bed. The plaintiff was prevented from pushing the wheelchair all the way to the oxygen because there was a small trolley in front of the oxygen outlet. Between the trolley and the bed was an intravenous stand. On the other side of the trolley there was a chair and next to the chair was a linen trolley. To the right of the wheelchair there was a mattress on the floor. Mattresses were sometimes placed on the floor in birthing suites because some patients prefer to give birth on the floor. To get access to the oxygen the plaintiff had to lean past the wheelchair in which the patient was sitting and over and past the small trolley. This required her to stretch to enable her, first of all, to unravel the oxygen tubing and then to get an oxygen mask. While the plaintiff was attempting to do this Ms Prout was on the other side of the bed and Ms Pritchard was assisting the patient in the wheelchair, keeping her neck and jaw in a flexed position to enable her airway to remain open. After the plaintiff had spent some time endeavouring to access the equipment to enable oxygen to be administered to the patient Ms Pritchard was able to lift and support the patient further up the wheelchair and so able to move the wheelchair backwards, which enabled the plaintiff to move close to the bed and reach the equipment. The patient was administered oxygen and revived successfully. About an hour later the plaintiff experienced pain in her back for which she subsequently required treatment.
Ms Pritchard was called by counsel for the plaintiff. Her evidence as to the patient's condition and the course of events on 29 November 1994 was substantially the same as the plaintiff's. Her evidence was that it appeared that there had recently been a birth in Birth Suite 5 which was the reason for the suite being laid out as it was. Her evidence was as follows:
"Right. Can you describe to his Honour the layout in this room 5 as you recall it on 29 November 1994?---There was - it seemed as if there had been a delivery there not long beforehand. It might have even been this lady that had delivered - - -
Why do you say that?--- - - - because it wasn't all tidied up; there were bits and pieces around which happens after a delivery, there's often bits and pieces, and there was something on the floor which was more than likely a mattress because a lot of ladies delivery on the floor on a mattress and on a beanbag."
The second accident the subject of this action occurred on 10 December 1994. The plaintiff's evidence was that she was then working on the shift commencing at 7.00 am and finishing at 2.30 pm. She was working in Birthing Suite 2, caring for a patient in labour.
The patient had an intravenous drip going from a litre bag on an intravenous stand beside the bed through a pump into her hand. The patient required an epidural injection. Before the epidural injection the plaintiff had to place a second line of intravenous fluids into the patient's hand from another litre bag, which bag was also on the intravenous stand.
The intravenous stand had two arms at the top. On each arm there was placed one bag of fluid. There was a pump on the stand which was used to regulate the rate and flow of medication through one of the tubes. The base was a lightweight stand and made of some sort of metal material and had four legs on it. Underneath each of the legs was a small balled castor wheel.
After the patient had had the epidural inserted she asked the plaintiff to assist her to change position and move further up the bed. There was a beanbag on the bed on which the patient was resting. The beanbag was covered in vinyl and over the vinyl was a small half sized sheet called a drawsheet. The drawsheet was not fitted to the beanbag.
The plaintiff assisted the patient to change her position. Once that manoeuvre was completed it was necessary for the plaintiff to move the intravenous trolley closer to the patient to provide some slack in the intravenous tube lines to prevent accidental disconnection of the lines. As she attempted to move the stand it toppled over. The plaintiff reached out to catch it. She successfully caught it, but in doing so the weight of the stand falling pulled her down to the floor and her knuckles touched the floor. She prevented the stand from hitting the floor. The plaintiff righted the stand and then moved the stand closer to the patient.
The plaintiff felt excruciating pain in the back of her neck. She developed cervical, thoracic and lumbar pain for which she has received medical treatment.
When the plaintiff righted the stand she noticed that the drawsheet which was originally on the beanbag was on the floor and in contact with the wheels of the intravenous stand. The plaintiff subsequently concluded that the drawsheet had wound itself around the wheel of the stand, preventing the wheels from moving so that the stand toppled over when the plaintiff attempted to move it. It was this conclusion that she wrote in her accident report.
It was the practise at the Swan District Hospital for patients in labour who had intravenous lines connected to bags of fluid to have those bags of fluid on mobile intravenous stands such as the one involved in this accident because it was the hospital's practice to encourage patients to be active and mobile prior to delivery and so, if they required to move, they could walk and the stand could move with them. This meant that the stand had to be light and the size of the legs of the stand could not be so large as to risk tripping the patient.
The plaintiff called Donald Geofry Turner. Mr Turner is a mechanical engineer and the general manager of a company that manufactures hospital equipment including intravenous stands. In 1994 Mr Turner's company manufactured one type of intravenous stand. It weighed 10 kilograms. It had five legs rather than four. Mr Turner carried out tests on the intravenous stand with its wheels blocked by a drawsheet and with its wheels blocked by a flat bar. In each case a horizontal force was applied to the stand at 1,400 millimetres from the floor. In each case the force required to cause the stand to fall over ranged from 0.8 to 1 kilogram, depending upon the direction in which the force was applied.
Mr Turner also tested two intravenous stands manufactured by his company which were not manufactured in 1994. One of those stands also weighed 10 kilograms. It differed from the first stand in that it had a bend in it to give it greater stability with a pump attached. When tested under the same conditions, the force required to make it fall over ranged from 1.1 to two kilograms.
The third stand tested by Mr Turner weighed 16 kilograms and had longer legs.
Due to its size, it would not have been suitable for use with a patient in labour to move around. In any event, the stand was not available in 1994. That stand rolled over a drawsheet with approximately 1.8 kilograms of force and when its legs were blocked by a flat bar it fell over when forces of 2.9 to three kilograms were applied.
The plaintiff also called Dr Steven Chew, chartered professional engineer and certified professional ergonomist. Dr Chew tested two intravenous stands similar to the stand that the plaintiff said was involved in the accident that occurred on 10 December 1994. One stand weighed 9.5 kilograms and the other weighed 5.5 kilograms. He tested the two stands with a crumpled sheet lying on the floor and applying a horizontal force at approximately 1.4 metres above the floor. The force required to cause the stand that weighed 9.5 kilograms to topple over was 0.5 to 1 kilogram, depending upon the direction in which the force was applied. The force required to cause the stand which weighed 5.5 kilograms to topple over was 0.5 kilogram. Dr Chew concluded that each stand was unstable because small forces could topple it over if its wheels were immobilised. The stability of the stands could be improved if the weight of the base was increased substantially, the length of each leg on the base was increased and there were five instead of four legs on the base.
The defendant called Magretta Wallis. Ms Wallis is employed by the Swan District Hospital as a clinical nurse and manager for the maternity ward. She commenced employment at the hospital in February 1989. Her evidence was that all of the equipment in a birthing suite is portable as it is designed to be moved in and out of the room as required. Ms Wallis was shown Exhibit 1, which was the plaintiff's representation of Birthing Suite 5 at the time of the first accident. It shows an intravenous stand, an intravenous trolley, a chair and a linen trolley between the bed and the wall to the right of the bed. She expressed the view that there was not sufficient room space to place those items without moving the bed significantly towards the other side of the room. However, her evidence on this question was very imprecise and she also agreed that the IV stand could occupy very little space because the trolley could be placed very close to it as shown on Exhibit 9. I am not satisfied, on the basis of Ms Wallis' evidence, that I should reject the plaintiff's evidence on this point.
Ms Wallis also gave evidence that there were other rooms where the patient could have been taken on 29 November 1994 to be resuscitated, although she did not question the judgment of the plaintiff and the other nurses in taking the patient to Birthing Suite 5.
Ms Wallis also gave evidence that intravenous stands at the hospital were fairly stable and she was not aware of any other incident where a stand had fallen over. New stands had been purchased since 1994 which were more stable than the stands in use in 1994. She tested those stands before they were purchased. Although they were more stable than the stands in use in 1994 they would topple over if the wheels were immobilised and they were pushed.
The defendant also called Ms Ruth Abberley. In 1994 she was a clinical nurse at the Swan District Hospital and also the occupational health and safety representative. As occupational health and safety representative, she had been provided with the plaintiff's staff accident reports for the two accidents in which the plaintiff was involved and she had made notes on the forms as to her investigations and possible solutions to prevent the accidents occurring. Ms Abberley had no recollection of the first accident and a very vague recollection of a conversation with the plaintiff about the second incident.
The defendant also called Raymond Victor Basham. Mr Basham is an architect with extensive experience in health. He reviewed Birthing Suite 5 and found it generally in accordance with the Health Department of WA standards which were applicable in 1994.
I accept the evidence of the plaintiff as to the circumstances of each accident. In cross‑examination of the plaintiff it was suggested that the patient in the first accident was not in the condition that the plaintiff described because there is no note of that condition on the patient's file.
The plaintiff rejected that suggestion. Her evidence was confirmed by the evidence of Ms Pritchard and I accept it.
On the basis of Ms Pritchard's evidence I conclude that a baby had been delivered in Birthing Suite 5 before the first accident and the room had not been tidied up after the delivery. It was for this reason that the room was cluttered with objects including the mattress on the floor. I am unable to determine how long before the first accident the baby had been born in the birthing suite.
As the plaintiff's employer, the defendant had a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The employer's duty is not an absolute one because the employer is not the insurer of the employee: Bankstown Foundry Pty Ltd v Braistina (supra). The duty is that of reasonable care, not one of strict liability: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.
A worker will be guilty of contributory negligence if the worker ought reasonably to have foreseen that the worker would be exposed to risk of injury if the worker did not act as a reasonable and prudent person: Bankstown Foundry Pty Ltd v Braistina (supra).
In relation to the first accident I am not satisfied that there has been a breach of duty of care owed by the defendant to the plaintiff. The birthing suite had been used for the delivery of a baby before the accident and it had not been tidied up before the accident occurred. It is not possible to determine on the evidence for what period the birthing suite had been in the state it was when the plaintiff entered it to resuscitate the patient. It could have been a very short time. In my view reasonable care on the part of the defendant did not require it to rearrange a birthing suite immediately upon a baby being born.
In case I am wrong in that conclusion I will consider the defendant's allegation of contributory negligence on the part of the plaintiff. The defendant contends that the accident was caused or contributed to by the plaintiff in failing to walk around the patient in order to access the oxygen outlet and failing to take proper care for her own safety by taking steps such as moving the wheelchair back to enable her to get in front of the wheelchair and get better access to the oxygen outlet. The plaintiff was confronted with a situation where a patient was unconscious and in need of resuscitation. The situation was one of some urgency. Quite properly and understandably the plaintiff's attention was addressed to attending to the patient rather than planning her activity to ensure that the risks of injury to herself were minimised. In that context, in my view, there was no negligence on the plaintiff's part.
Although the plaintiff's experts and counsel criticised the stability of the intravenous stand involved in the second accident I am not satisfied that the stand was unsafe. The stand was required to be reasonably light and mobile to enable patients to move it with them as they were moving around the hospital. Even if the intravenous stand had five legs the evidence of Mr Turner shows that the increase in stability where the wheels are obstructed is not great.
However, in my view, there has been a failure on the part of the defendant to exercise reasonable care for the plaintiff's safety in having an unfitted drawsheet on the beanbag. Because the drawsheet was not fitted to the beanbag it was foreseeable that it would fall off the beanbag and onto the floor as occurred in this case. It was also plainly foreseeable that once on the floor a sheet could obstruct one of the several pieces of mobile equipment in the birthing suite such as the intravenous stand and so cause an accident. Little effort would have been required on the part of the defendant to provide fitted sheets which would have removed this risk. On the basis of the evidence of the plaintiff that after the accident she saw the sheet on the ground against the wheels of the stand and the evidence of both Dr Chew and Mr Turner as to the low level of force required to make similar stands topple over when the wheels are obstructed by a sheet I conclude that the sheet on the ground caused the stand to topple over when the plaintiff attempted to move it. I conclude that the second accident resulted from a breach of duty of care by the defendant in failing to use a fitted drawsheet on the beanbag.
I do not accept that there was any negligence on the plaintiff's part in the second accident. She was dealing with a patient in labour and, after having moved the patient, it was necessary for her to move the stand to ensure that the intravenous drip lines had some slack in them so that they did not inadvertently come out of the patient's hand. In those circumstances, in my view, there was no failure on her part to exercise reasonable care for her safety in failing to do an inspection of the floor before attempting to move the intravenous trolley a short distance towards the patient.
For these reasons I conclude that the first accident was not the result of a breach of duty of care owed by the defendant to the plaintiff, that the second accident resulted from a breach of duty of care owed by the defendant to the plaintiff and that in each case, there was no negligence on the plaintiff's part.