Yardley v Burnside War Memorial Hospital No. DCCIV-02-1060

YARDLEY v BURNSIDE WAR MEMORIAL HOSPITAL
[2003] SADC 83
Judge Anderson
Civil

The Plaintiff’s claim against the Defendant is in negligence. At this time, by consent, only the issue of liability falls to be determined. The Defendant, by its Defence, denies that it was negligent.
Certain of the facts underpinning the Plaintiff’s case are not in dispute.
The Plaintiff is aged 53 at trial. For many years, until 18 October 2003, she was employed as a full time cosmetic consultant in the retail cosmetics industry. The evidence establishes that she was so employed by Myer Stores Ltd from August 1983 until 23 September 2002 when that employment was terminated because of her inability to work. It is alleged that this inability was as a consequence of the injury she allegedly sustained by virtue of the Defendant’s negligence at its Hospital on 18 October 2000.
The Defendant admits that the Plaintiff was admitted as an in‑patient to the Hospital on 16 October 2002 to undergo keyhole gall bladder surgery. On that day she was accommodated in room TS22. That is a two bedded hospital room with en suite bathroom. At the time of her admission, another patient was in shared occupation of the room.
The Plaintiff underwent surgery late on 16 October 2000 and after a period of recovery was returned to room TS22. On 17 October 2000 she remained in that room. Later on that day Mrs Purzcel was admitted to room TS22 as a patient. She was undergoing intravenous antibiotic treatment and remained in bed except for her use of the bathroom.
From the time of their admission each of the Plaintiff and Mrs Purzcel used the toilet within the en suite without impediment and did not, on any such occasion, notice any fault or irregularity with its manner of operation.
The toilet, as is shown in the photographs tendered in evidence, is somewhat older in style. The evidence established that room TS22 and en suite were constructed in 1991 and since that time have not been renovated or otherwise altered in structure. It consisted of a cistern attached to the wall with the main water supply running into it from below by what appears to be a copper pipe controlled by a tap. From the base of the cistern a plastic tube ran a short distance and joined the rear top of the toilet proper. The toilet was standing free a short distance from the wall. It was set into the floor and surrounded by floor tiles. The toilet faced into the hospital room such that a person sitting on it, were the door open, would look directly at the bed occupied by the Plaintiff.
The pipe from the cistern provided the water flow to flush the toilet pan upon the button on the cistern being pressed. By the end of 17 October 2000 there was no complaint from the occupants of TS22 about its functioning and certainly they did not experience water on the floor surrounding the base of the toilet at any time during their occupancy.
Late on 17 October 2000 the Plaintiff’s surgeon released her for discharge on 18 October 2000. The Plaintiff then arranged to be picked up at about 9.00am on 18 October 2000 by her neighbour, Mr Farkas.
Notwithstanding a tender stomach, the Plaintiff readied herself for discharge on 18 October 2000. By about 9.00am she was dressed and had completed the required discharge procedure. She waited in room TS22 with Mrs Purzcel for Mr Farkas to arrive. Whilst so doing she was overcome by the need to use the toilet to open her bowels for the first time since her operation. This she managed without incident to the point where she was ready to stand from the toilet, re‑dress herself and flush the toilet.
In evidence she described what then occurred. Because of her tender stomach she sought to use a handrail on the wall adjacent to the toilet to ease her standing up and the transfer of her weight from the toilet to her legs. To do so she leant forward to seize the rail. She described the rail as being angled from low at the front to higher near the cistern. The photograph in evidence showed the rail as horizontal. Evidence given by Mr Warden, CEO of the Defendant, was that this room had not been altered since construction. I accept that evidence and find that the rail was not placed towards the floor at the front of the toilet.
The Plaintiff said that as she leant forward to take her weight on the handrail and her feet, and before she removed her weight from the toilet, it moved forward with a “horrific noise of cracking” (T14). This was the first sign of difficulty. She said that as she moved forward the toilet tilted forward towards the floor so that she then slid from it to the floor with her legs extended on the floor in front of her. She then fell back onto the toilet which hurt her lower right back, which is the injury relating to this action, and the impact of which had the effect of pushing the toilet back into an upright position akin to its usual position.
She then managed to stand. She was wearing loose fitting jeans for comfort. As she stood pulling up her jeans, the Plaintiff turned to flush the cistern to clear her motion from the toilet bowl. As she did so she noticed that her jeans, where she had been sitting on the floor, were wet. She also saw a small quantity of water surrounding the base of the toilet.
The Plaintiff flushed the toilet. There was, I accept, an immediate discharge of water onto the floor. The water ran across the floor of the en suite and out into the room. Mrs Purzcel described it as a flood that wet the carpet in the hospital room and under her bed, which was further distant from the en suite door than the Plaintiff’s bed.
The Plaintiff said, and I accept, that this flushing of the cistern did not discharge water into the toilet bowl and did not flush away her motion.
The Plaintiff turned and left the bathroom. She described herself as hysterical - half laughing - half crying. Mrs Purzcel said that the Plaintiff was distressed when she left the en suite. She went to the hand basin in the room and washed her hands.
By this time hospital staff had arrived because when Mrs Purzcel heard loud noise in the toilet, she had pressed the room call bell. Both Mrs Purzcel and the Plaintiff described several nurses attending. The one who seemed to be in charge, whom I am unable to positively identify from the evidence, comforted the Plaintiff who was now sitting in a chair adjacent to her bed and in line with the en suite doorway and hence the toilet.
There was conflicting evidence of the manner in which the Plaintiff was comforted. In my view, nothing turns on these differences, recalled, as they were, of a moment in time 2½ years ago. I am satisfied that the Plaintiff was comforted. She was given a cup of tea and some medication to calm her.
There was activity in the room because of the volume of water. I accept that several nurses put towels on the floor to both stem the spread of water and soak it up. In addition, I accept that Ms Souter, the ward clerk, attended and immediately called for maintenance staff to attend. This they did. There is no record of who or how many attended. Both the Plaintiff and Mrs Purzcel said there were at least two. I accept that evidence. There is none to the contrary. I think it probable that Mr Ratta was one of them.
In evidence Mr Ratta, like other hospital staff, had no accurate and reliable recollection of this event. He relied on a maintenance docket to say that at some time on that day he spent 20 minutes repairing what was described as an overflowing toilet. Certainly, there is no evidence that the toilet bowl overflowed. I accept the Plaintiff’s evidence in that regard. Such a description was actually nothing more than a euphemism for water on the bathroom floor in the vicinity of the toilet. This is supported by the Plaintiff’s evidence, which I accept, that when the maintenance men attended initially, one of them used a bucket full of water to flush the toilet of the Plaintiff’s motion.
This activity in the en suite and bedroom was witnessed by Mr Farkas who arrived to collect the Plaintiff during it. His evidence generally supports the Plaintiff as to what occurred, but is, of course, more limited because he was not present for the whole period.
There is no doubt that the Plaintiff was allowed immediately thereafter to complete her discharge. Not only was her surgeon not advised of this incident, but no record of it appears in her Patient history and no note of whatever medication she was given appears in her medication charts which are in evidence (P3). Notwithstanding that the Plaintiff said she was alright and able to leave, such oversight reflects poorly on the staff of the Defendant who were present at this incident.
Whilst the Plaintiff was somewhat composed when she left the hospital, she became distressed again on her journey home. Mr Farkas had to help her from his car and into her home. She was later seen by her friend, Ms Khuu, who gave evidence. She is a qualified nurse. She described the Plaintiff’s distress and pain and examined her. She found bruises on the Plaintiff’s back, but was unable to recall precisely where. It is probable that they were on the right side as the Plaintiff described.
On 19 October 2000 the Plaintiff visited her general practitioner because of her back discomfort. She did not immediately advise the Defendant of her injury and subsequent difficulties.
None of the witnesses called for the Defence had any or any reliable recollection of this event after this time. I make no criticism of them for that, but I do, as I have mentioned, for their failure to make an appropriate record entry at the time. However, such a failure is of no assistance to the Plaintiff in this action except that it allows for no debate about her version of what occurred except to the extent that there exists within the Defendant’s records objective evidence which is of assistance.
That evidence establishes, as I have said, that there were no renovations to room TS22 from the time of its construction in 1991 until 18 October 2000 and that the handrail was located parallel to the floor as is shown in the photographs in evidence.
It also establishes that the only work done to repair the toilet on that day, or thereabouts, was the 20 minute repair undertaken by Mr Ratta. In evidence he presumed that he had replaced the seal in the cistern, but had no actual recollection. He was not asked as to any other possibilities except he said that he would not do work which required a qualified plumber, such as reset a loose toilet bowl into the floor.
I accept the evidence of Mr Dow who is, and has been for many years, in charge of the Defendant’s maintenance staff and records, that no plumber was called to attend room TS22 on that day or at any proximate time. No work other than that undertaken by Mr Ratta was done in room TS22 on 18 October 2000.
The Defendant’s records also establish that Mrs Purzcel was, as she said, moved from the room that morning and that in the afternoon two more patients were admitted to TS22 and that thereafter the room was occupied in the usual manner.
I accept the evidence of Mr Dow and Mr Warden that had plumbing work been necessary to reseat the toilet to the floor, the room would not then be available for use for at least 24 hours.
What then occurred whilst the Plaintiff was in the en suite at about 9.00am on 18 October 2000? Three scenarios were postulated by counsel during addresses.
Mr Stanley of counsel for the Defendant suggested:
(a) that the incident occurred as described by the Plaintiff; or
(b)that the Plaintiff fell to the floor as she was standing up from the toilet, landing in front of the toilet as she described, and then fell against the toilet striking the toilet bowl near the seat and so jolting it with force so as to disconnect or loosen in some way the pipe connection from the cistern into the toilet bowl which then allowed water within it to fall to the floor around the toilet.
This alternative would explain the wetting of the Plaintiff’s jeans as she sat on the floor in front of the toilet. It would also explain why, when the Plaintiff pressed the cistern button to flush the toilet bowl, water poured onto the floor and not into the toilet bowl. It is of no consequence in this scenario whether the Plaintiff fell to the floor and then struck the toilet or fell onto the toilet before landing on the floor.
Mr Day of counsel for the Plaintiff suggested:
(c)that as the Plaintiff held the handrail for the purpose which I have earlier described, she, in some way, applied pressure to the toilet on its seat which led in some unidentified way to the disconnection between the pipe from the cistern and the toilet bowl.
Mr Day sought to draw from such a scenario that some cause for the Plaintiff’s fall could and should be attributed to some unidentified defect in the cistern pipe. I am unable to find any satisfactory evidence to support such a likelihood.
In my opinion, accepting as I do, the objective evidence led by the Defendant that there was no fault with the toilet other than one that took a mere 20 minutes to fix, it is not a reasonable probability that the incident occurred in the manner described by the Plaintiff. Were it to have occurred as she described, then serious damage to the fixture of the toilet bowl to the floor must have existed. It plainly did not.
In such a circumstance, the overwhelming probability is that the accident occurred in a manner akin to as described in scenario (b).
For a reason and in a way which is not known, the Plaintiff seemingly fell whilst attempting to stand from the toilet and struck the toilet, thereby in some way separating the seal between the cistern pipe and toilet so allowing a small volume of water to escape. This water wet the Plaintiff’s jeans as she sat on the floor, having landed there from her fall onto the toilet. This would account for the two separate noises heard by Mrs Purzcel before she pressed the call bell.
I find that the Plaintiff was in error as to how this incident occurred. Her version of what occurred is unable to overcome the Defendant’s objective evidence, which I have accepted.
Much complaint was made by Mr Stanley of the Plaintiff’s allegedly differing statements to assessing doctors who were not called. In the absence of their examination on the topic of the Plaintiff’s reporting to them, I place no weight on this complaint. Experience teaches that it is unwise to rely upon such untested reporting in such circumstances.
The Plaintiff’s allegations of negligence are set out in paragraph 7 of the Statement of Claim with the following particulars:
“7.1Failed to engage reasonably skilled and competent workmen to install and maintain the toilet facility.
7.2Allocated for the plaintiff’s use a toilet facility that was in a state of disrepair, thereby exposing the plaintiff to unnecessary and unreasonable risk of injury which could have been avoided by reasonable care.
7.3Failed to ensure that maintenance and/or repair work had been carried out satisfactorily.
7.4Failed to ensure that the toilet facility was fit to be used for its intended purpose.
7.5Failed to take any adequate or proper precautions for the safety of the plaintiff.
7.6Failed to have the plaintiff’s injuries examined and treated by a medical doctor prior to her discharge from the Hospital.”
It is conceded that paragraph 7.6 has no role to play in this pleading and that paragraph 7.5 is merely a wrapped up plea of what has gone before. Hence, neither are presently relevant.
Paragraph 7.1 is not supported by the evidence on the Plaintiff’s own case. Before about 9.00am on 18 October 2000 there was no discernable fault with the toilet and no inspection could reasonably have been expected to find one. There is no credible suggestion that the maintenance reporting and repairing regime described in evidence was in any way faulty.
Paragraph 7.2 is similar. It is not supported on the Plaintiff’s own case and likely could never have been once discovery of the maintenance and repair procedures was given.
Paragraph 7.3 is also similar. There is no evidence of such a need.
Paragraph 7.4 is not proved on the Plaintiff’s own case.
The Plaintiff has failed to establish that the incident in the toilet occurred as she described in her evidence and, consequently, there exists no possibility that whatever did occur was as a result of a negligent failure by the Defendant.
Thus, the Plaintiff’s claim must fail.
Were it so that this event had occurred as the Plaintiff described, her claim must also fail as there is no evidence to support a finding that there existed in the toilet a defect of which the Defendant should have been aware or which might reasonably have been revealed to it in the usual course of daily cleaning or use. It was not something which might reasonably have been revealed by a periodic inspection regime designed to find the existence of fault in the hospital toilets. The application by Mr Day, made at the conclusion of his address, for leave to amend the Statement of Claim in these terms is refused.
On the facts as I have found them to be, there was no defect with the toilet, latent or otherwise. It was created by the Plaintiff falling onto it in some way as she sought to stand.
Whilst the Defendant undoubtedly owed the Plaintiff a duty of care, as Mr Stanley quite properly conceded, that duty is to exercise no more than reasonable care to prevent a person such as the Plaintiff suffering from a reasonably foreseeable risk. No breach of such a duty has here been established.
There will be judgment for the Defendant. I shall hear counsel on the question of costs.

[2003] SADC 83

29 May 2003