Downes v Affinity Health Pty Ltd [2016] QCA 129 [2017] 1 Qd R 607

SUPREME COURT OF QUEENSLAND CITATION: Downes v Affinity Health Pty Ltd [2016] QCA 129 PARTIES: DIANNE ROSEMARY DOWNES (applicant) v AFFINITY HEALTH PTY LIMITED ABN 53 106 722 347 (respondent) FILE NO/S: Appeal No 8963 of 2015 DC No 305 of 2009 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Maroochydore – [2015] QDC 197 DELIVERED ON: 13 May 2016 DELIVERED AT: Brisbane HEARING DATE: 18 February 2016 JUDGES: Holmes CJ and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, Holmes CJ and Morrison JA concurring as to the orders made, Philip McMurdo JA dissenting ORDERS: 1. The application for leave to appeal is refused. 2. The Notice of Contention is dismissed. 3. The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant, a registered nurse at the respondent hospital, aided an elderly post-operative patient back into bed with the help of another nurse – where the applicant contends that she aggravated a spinal condition in the course of intercepting the patient and lifting her back into bed – where the applicant contends that the circumstances of the patient’s age and surgery warranted the patient to be given a bed with full length cot rails -- 1 of 34 -- 2 – where the applicant contends that if the respondent had provided the patient with a bed with full length cot rails then she would never have been able to climb out of bed, resulting in the applicant having to lift her back into bed and damaging her back – where the applicant contends that the respondent’s failure to provide the patient with a bed with full length cot rails amounts to a breach of duty – where the learned trial judge found that the hospital’s failure to provide full length cot rails was not a breach of duty – whether the respondent breached its duty of care to the applicant by not providing the patient with a bed with full length cot rails TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the applicant contends that the respondent breached its duty of care in respect of its omission to ensure that information specific to the patient was brought to the attention of nursing staff, including the applicant – where the applicant contends that this would have had the effect of creating heightened vigilance in the care of the patient – where the learned trial judge found that the respondent had breached its duty of care in this respect – where the respondent filed a Notice of Contention challenging the learned trial judge’s findings in this respect – whether the respondent breached its duty of care in not making clear to the applicant of the need for heightened vigilance in the care of the patient TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the applicant contends that there was a causal link between the respondent’s failure to provide the patient with a bed with full length cot rails and the aggravation of her back injury – where the respondent contends that if there was a breach of duty, then there was no causal link between the respondent’s omission to provide the bed with full length cot rails and the applicant’s injury – where the trial judge accepted the respondent’s case and based his findings on the unreliability of the applicant’s evidence as to the factual circumstances surrounding the alleged injury – where the applicant’s evidence contained internal inconsistencies and inconsistencies with other witnesses – where there was contention as to where the patient was in relation to the bed when the applicant and the other nurse intercepted her and lifted her back into bed – where the applicant contends that the patient was sitting on the edge of the bed – where the other nurse contends that the patient was out of bed and using a wheelie walker – where if the lift was executed as the applicant contends then this would have been -- 2 of 34 -- 3 directly contrary to the respondent’s well established and known training in the no-lift policy – where the applicant provided inconsistent accounts as to the onset of the pain – where the applicant’s evidence at trial was that she felt pain immediately after “twisting” to lift the patient back into bed – where the applicant, on cross-examination, was taken to a statement she had made earlier stating the pain was not felt “until later” – where the question of causation is answered by what actually happened – where the applicant’s case confronts adverse findings of the learned trial judge as to her reliability – where the evidence amply supported the learned trial judge’s finding that the training in techniques to avoid injury in moving a patient up the bed was adequate in the circumstances, if not thorough, and that the manoeuvre described by the applicant was unequivocally non-compliant with the no-lift policy – where these findings underpin the learned trial judge’s rejection of a causal link between the negligence and the injury District Court of Queensland Act 1967 (Qld), s 118(3) Workplace Health and Safety Act 2011 (Qld), s 28(1) Adeels Palace Pty Ltd v Moubarack (2009) 239 CLR 420; [2009] HCA 48, cited Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5, cited Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27, applied Bulsey v Queensland [2015] QCA 187, followed Downes v Affinity Health Pty Ltd [2015] QDC 197, approved Eaton v Pitman (1991) 55 SASR 386, considered Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; (2004) 209 ALR 568; [2004] FCAFC 189, considered Hopkins v WorkCover Queensland [2004] QCA 155, considered Johnson v Queensland Police Service [2014] QCA 195, followed March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, followed Mbuzi v Hornby [2010] QCA 186, followed Pickering v McArthur [2005] QCA 294, followed Pledge v Roads and Traffic Authority (2004) 78 ALJR 572; [2004] HCA 13, applied Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, cited Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19, cited Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, followed Toth v ACI Australia, Trading as Laminex Industries, unreported, Supreme Court of Queensland, 18 August 1995, considered Wolters v The University of the Sunshine Coast [2014] -- 3 of 34 -- 4 1 Qd R 571; [2013] QCA 228, applied Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, followed COUNSEL: R J Douglas QC, with L R Smith, for the applicant R M Treston QC, with D J Schneidewin, for the respondent SOLICITORS: Adrian Hawkes Lawyers for the applicant McInnes Wilson for the respondent [1] HOLMES CJ: I agree with the reasons of Morrison JA and the orders he proposes. [2] MORRISON JA: On 25 July 2007 Beryl, an elderly post-operative patient in the surgical ward at Nambour Hospital, tried to get out of bed at about 2.30 am. Ms Downes, a longstanding registered nurse employed at the Hospital, intercepted Beryl in order to put her back into bed. She was assisted by another nurse, Ms Wendland, who helped Ms Downes lift Beryl back into bed. [3] Ms Downes had been employed as a nurse at the Hospital for about 25 years. [4] Ms Downes said that she aggravated a spinal condition in the course of intercepting Beryl and lifting her back into bed. [5] The precise circumstances in which she said she was injured were the subject of conflicting evidence between Ms Downes and Ms Wendland. On Ms Downes’ version: Beryl had not actually got out of bed, but was sitting on the edge with her feet dangling; Ms Downes had to hold onto Beryl at an angle, supporting her, until she and Ms Wendland could lift her back into bed. On Ms Wendland’s version: Beryl was out of bed and using a wheelie walker to move away from the bed when she and Ms Downes were able to intercept her and lift her back into bed. [6] The learned trial judge dismissed the claim, with costs. [7] Ms Downes seeks to appeal from those orders. She needs leave to so do under s 118(3) of the District Court of Queensland Act 1967 (Qld). The issues raised by the application are whether: (a) an appeal is necessary to correct a substantial injustice; and (b) there is a reasonable argument that there is an error to be corrected.1 [8] The Hospital took the approach that if the proposed grounds of appeal had merit then leave was not opposed. Suggested errors to be corrected [9] It was contended that there were four specific errors on the part of the learned primary judge. 1 Pickering v McArthur [2005] QCA 294 at [3]; Mbuzi v Hornby [2010] QCA 186 at [13]; Johnson v Queensland Police Service [2014] QCA 195 at [29]. -- 4 of 34 -- 5 [10] The applicant contended that the following errors were made: (a) not finding that the hospital’s failure to provide a bed with full length cot rails was a breach of duty; (b) not finding that there was a causal link between the breaches of duty and the injury; and (c) inadequately assessing the component of past economic loss, in particular by applying a discount factor (one third) that was too high. [11] The Hospital filed a Notice of Contention, seeking to affirm the decision below on another basis, namely that there should have been a finding of no breach of duty in respect of the heightened vigilance ground. The evidence of Ms Downes [12] Ms Downes gave the following account of what happened. She heard the side of the cot rattle, and went into the room;2 Beryl was between the cot side and the end of the bed, leaning as if she was going to fall out; she was holding onto the cot side and just teetering to fall out of bed;3 she was sitting, sort of perched on the side of the bed, nearly ready to fall out.4 Beryl’s walker was at the end of the bed, between the door and the bed.5 Ms Downes went in and grabbed hold of Beryl with her arms, twisting to support her so she wouldn’t fall any further.6 She was trying to keep Beryl in the one position, straight without wriggling her hip.7 [13] Ms Wendland put the cot side down and supported Beryl’s legs while Ms Downes was still holding on to Beryl. They put her onto the bed, laid her down so that she was straight, put her leg in the position that it should have been, then lifted her up higher in the bed.8 There were two lifts involved, the first lift onto the bed and the second lift up to the top of the bed.9 [14] She felt sharp severe back pain when she was twisting to hold Beryl still so that she would not fall, and dull back pain when they lifted and moved her.10 [15] There were a number of contrary versions given by Ms Downes: 2 AB 27 – 28. 3 AB 28. 4 AB 71. 5 AB 30. 6 AB 78, 89-90. 7 AB 29. 8 AB 30 9 AB 30. 10 AB 30, 78-79, 88. -- 5 of 34 -- 6 (a) she made the following notation made at 4.30 am that morning, “[Beryl] out of bed – WW”;11 (b) on 31 July 2007 she completed a Notification Report, in which she said: “heard the noise of walking frame and ran into the room and [Beryl] was out of bed – using frame. So I picked her up to support her and called for the other nurse”;12 (c) on 6 August 2007 she filled in an application for compensation in which she described the event as “bending to catch a patient before she fell over”;13 (d) on 9 August 2007, in another application for compensation she answered the question, “was there any object or other person involved?”, with “Wheely- walker – [patient] trying to walk with it”;14 and (e) in a report to a medical centre, when asked how the pain arose, she said: “patient out of bed after total caught her as she fell to the floor”.15 [16] In cross-examination Ms Downes was confronted with various statements made by her, where she had given a version of the incident which conflicted with her evidence. Further, the essential differences between her evidence and that of Ms Wendland were put to her. That included being taken to a statement made by her in November 2008, which recorded that she did not feel pain at the time she first took hold of Beryl (when she said she flexed her back and twisted to the right) and that “I didn’t feel any pain in my back until later”. She said that version was not correct, “because I did feel it straight away”.16 However, in answering questions from the learned trial judge she said that she did not know why she had said the pain was only felt later.17 [17] Ms Downes was unable to say just what postural position she adopted when she was preventing Beryl from getting out of bed.18 [18] Ms Wendland gave evidence that conflicted with that of Ms Downes as to how the incident occurred. She entered the room and saw that Beryl was on a mobility device headed in the direction towards the bathroom, half a metre from the bed.19 Beryl was using a wheelie walker and Ms Downes was to one side or other, but Beryl was definitely standing up on the walking aid.20 She remembered that as she made 11 “WW” refers to a wheelie walker. 12 AB 669. 13 AB 682. 14 AB 685. 15 Exhibit 2. 16 AB 90-91, 93, 95. 17 AB 93. 18 AB 137-138. 19 AB 361. 20 AB 373. -- 6 of 34 -- 7 a (possibly inappropriate) joke about it to the surgeon the next morning.21 She remembered the joke as she was concerned it may have been inappropriate, in the sense that she “probably shouldn’t joke … that the patient got out and walked”.22 [19] When Ms Wendland was shown the description and diagrams adopted by Ms Downes as revealing the way that they moved Beryl back onto the bed, Ms Wendland said she had “… never moved a patient like that. I would never move a patient like that”.23 Findings as to the witnesses [20] The learned trial judge accepted that each of Ms Downes and Ms Wendland were honest witnesses, but also found they were unreliable as to the circumstances in which the incident with Beryl occurred. Having reviewed the inconsistencies in each account, both internally and as between the two witnesses, his Honour concluded:24 “… given the marked inconsistencies in the versions each of them have provided as to the circumstances of the critical incident, each of them must be regarded as unreliable, at least as to those circumstances”. [21] His Honour went on:25 “Critically, the plaintiff's evidence confronts the striking obstacle that her first recorded version, in the incident report dated 31 July 2007, contains the positive assertion that ‘the patient was out of bed using frame’. That is critically inconsistent with the version upon which the plaintiff's case is based and her purported explanation for it,26 is unconvincing and unacceptable. Similarly, the inconsistent statements as to the onset of pain are both clear and critical.” [22] Ms Downes did not seek to challenge the findings as to the unreliability of herself and Ms Wendland as to the circumstances of the incident. Rather, accepting those findings it was contended that “the injury sustained occurred on account of a causative breach of duty”.27 Finding as to how the injury was sustained 21 AB 362, 373. 22 AB 379. 23 AB 364. 24 Reasons [49]. 25 Reasons [50]. 26 In the Reasons this is a reference to paragraph [19] of the Reasons, however that is an error. The explanation appears in paragraph [20]: “Her explanation was to the effect that where it may appear to depart from or conflict with her evidence, the form is inaccurate, in the sense of being poorly expressed and including what she had recalled as to what she thought Beryl was attempting to do at the time, rather than actually doing.” 27 Applicant’s outline paragraph 14. -- 7 of 34 -- 8 [23] The learned trial judge was confronted by differing accounts as to how the events unfolded. As can be seen from paragraphs [12] to [19] above, not only did Ms Downes’ account differ from that of Ms Wendland as to whether Beryl was out of bed and using the wheelie walker, but each of their accounts had internal inconsistencies depending on when it was given. [24] That the differences assumed some importance can be seen by noting: (i) on some of her versions Ms Downes said she felt no back pain at the time of the actions on intercepting Beryl, but the pain came later when she moved Beryl up the bed;28 (ii) the manoeuvre up the bed contravened the Hospital’s no-lift policy, of which Ms Downes was well aware; and (iii) Ms Wendland rejected Ms Downes’ account of how Beryl was moved on the bed, saying she had never, and would never, move a patient like that. [25] At paragraph [57] his Honour rejected a contention that “[w]hatever the version it is not contentious that [Ms Downes] sustained a back injury in the event involving ‘catching Beryl’ and lifting her back into the bed”. He did so on the basis that: “The full effect of that submission cannot be accepted. For example the question as to whether [Ms Downes] sustained any back injury in the incident did remain in contention and further the reference to ‘catching Beryl’ depends upon the ability of the court to form some conclusion as to the physical actions that were involved in [Ms Downes’] interaction with the patient.” [26] Plainly the learned trial judge was troubled about the ability to form some conclusion as to the physical actions that were involved in Ms Downes’ interaction with Beryl. However, his Honour acknowledged two things: (i) if such a conclusion could be reached then it may not matter precisely how the physical interaction occurred; and (ii) leaving aside questions of the reliability of Ms Downes and Ms Wendland, both had given evidence that there was an incident involving Ms Downes’ coming into contact with Beryl, and then both of them manually handling Beryl to bed.29 [27] The learned trial judge foreshadowed that he would return to that aspect of the case, but observed:30 “… for present purposes it may be seen that there is a particular difficulty in the failure of the plaintiff to establish any more precise circumstances of that manual handling, let alone any precise mechanism of injury, in that this serves to deny her attempt to prove that her injury was caused by any breach of duty in respect of her particular manual handling techniques or in the setup of the patient’s bed.” 28 For example see paragraph [16] above. 29 Reasons [57]. 30 Reasons [58]. -- 8 of 34 -- 9 [28] In that passage the learned trial judge seems to have moved to the language of causation, which would normally be a topic dealt with once breach of duty was established. However, in my view the better way to read that passage is that his Honour was saying the inability to establish just what happened in the interaction with Beryl, and the precise mechanism of the injury, meant that she could not prove that there was a breach of duty. [29] That is supported by paragraph [59] of the Reasons where his Honour referred, by way of an example of the point made in the previous paragraph, to one area of the contended breach of duty, namely the setup of the bed. His Honour said that a conclusion of breach of duty in that respect “critically depends upon a finding that [Ms Downes] was involved in supporting [Beryl] at the side of her bed and when she was attempting to move from it and to a standing position on the floor”.31 [30] The learned trial judge then referred in some detail to the contentions as to breach of duty in relation to the other area, manual handling of patients.32 His Honour then returned to the issue of whether he could conclude that there was a breach of duty:33 “However, one particular problem is that, in the absence of reliable evidence as to precisely what [Ms Downes] did by way of manually handling this patient, there is an obvious difficulty in establishing that any such breach [of] duty and which allowed her to adopt an inappropriate or incorrect technique, caused her any injury.” [31] The learned trial judge then examined various aspects of the evidence as to training and the management of risks in patient handling.34 Once again his Honour noted the difficulties presented by an inability to reach a conclusion as to what Ms Downes did and how the injury occurred: (a) as to the suggested absence of monitoring in relation to the correctness of the manual handling approach and techniques, “… that confronts the problem of the absence of reliable evidence as to what actually occurred”;35 (b) as to the attempt to rely upon the opinions of a Mr Robertson, a physiotherapist, who commented upon the events as related by Ms Downes: “… that also depended upon [Ms Downes’] description as to what she had done by way of manual handling of this patient”;36 31 Reasons [59]. 32 Reasons [60]-[61]. 33 Reasons [62]. 34 Reasons [63]-[70]. 35 Reasons [66]. 36 Reasons [67]. -- 9 of 34 -- 10 (c) as to a submission that the Hospital’s “no-lift policy” was not properly implemented: “… Once again an underlying problem for [Ms Downes] is the absence of reliable evidence as to what actually occurred”;37 (d) of the events given in evidence by Ms Downes and Ms Wendland, the only part that might be said to have been non-compliant with the “no-lift policy” was the action in lifting Beryl to reposition her on the bed; as to that: “… a further obstacle to this aspect of the case, is the absence of evidence that would enable a finding that it was this aspect of [Ms Downes’] actions which caused her injury”.38 [32] Ultimately the learned trial judge could not make a finding as to how the events occurred, except to this limited extent:39 “… both [Ms Downes] and Nurse Wendland gave evidence that there was an incident that involved [Ms Downes] first coming into contact with [Beryl], by way of some manual handling and that both of them were then involved in further manual handling of her… in order to return her to bed.” [33] Further, the learned trial judge could not make a finding whether Ms Downes sustained her injury in the way she alleged. [34] In respect of the difficulty of proving just what occurred in the incident and whether Ms Downes’ injury was caused by what occurred, senior counsel for Ms Downes referred to what was said by Dowsett J in Toth v ACI Australia, Trading as Laminex Industries.40 That was a damages claim for a back injury sustained when an employee tried to put out a fire. He could not say how it happened but it did so when he was fighting the fire. Dowsett J adopted the principle stated by the Full Court of South Australia in Eaton v Pitman:41 “It is not necessary for the existence of the duty that it should be reasonably foreseeable that the plaintiff would suffer physical injury of the type which was in fact suffered, nor in the manner in which the injury was in fact sustained. It is sufficient if it was reasonably foreseeable that some person might come to the assistance of the injured person and might suffer bodily injury in consequence of rendering that assistance.” [35] The contention was that Toth and Eaton stand for the proposition that in order to establish a duty of care it is not necessary that the particular injury should be reasonably foreseeable, but rather it is enough that injury of the type suffered was 37 Reasons [70]. 38 Reasons [70]. 39 Reasons [57]. 40 Unreported, Supreme Court, 18 August 1995; BC 9502181. 41 (1991) 55 SASR 386 at 389 per King CJ, Perry J concurring. (Eaton) -- 10 of 34 -- 11 reasonably foreseeable. Thus, it was submitted, it did not matter that the learned trial judge could not find how the injury occurred. [36] I do not consider that Toth or Eaton assist. The proposition referred to in each was that foreseeability of the precise type of injury was not necessary to establish the duty of care. That says nothing about the need to prove that the injury was suffered as a result of the breach of that duty. [37] In Toth there was no issue that the worker had been injured in the course of carrying out his duties, which included responding to a fire created by the employer’s negligence. It was found that both the fire starting and the worker seeking to put it out, were reasonably foreseeable actions. Further, there was no issue in Toth that the injury might have occurred in the course of carrying out work in a way that was contrary to the established rule, known to the worker. In Ms Downes’ case there was such an issue. If the injury was sustained in the course of the two nurses lifting Beryl along the bed, contrary to the no-lift policy, which was well known to Ms Downes, then it was not caused by the breach of duty identified. Hence the difficulty posed by the conflicting evidence. [38] The same is the case with Eaton, where a nurse was injured in the course of her duties when she assisted in lifting an injured cyclist into an ambulance. The Court found that it was reasonably foreseeable that she would assist the injured cyclist, and that the injury was caused by the assistance she gave. It was not in issue that the injury occurred as a result of the assistance.42 The issue was whether a duty of care arose at all, not whether the injury was caused by the proper carrying out of the nurse’s duties. Breach of the duty of care [39] At trial the hospital admitted it had a duty of care to Ms Downes, namely to take reasonable care to avoid foreseeable risk of injury to her. As recorded by the learned trial judge it was to:43 (a) provide her with a safe system of work and safe place of work (both as an implied term of the contract of employment and at common law); (b) ensure her health and safety at work, pursuant to s 28(1) of the Workplace Health and Safety Act 2011; and (c) ensure the workplace and any activities performed at the workplace were as safe for the plaintiff as reasonable skill and care could make them. [40] Accepting that the hospital owed Ms Downes a duty to take reasonable care to avoid foreseeable risk of injury to her does not take things very far, as it is necessary to determine what, in all the circumstances of the case, was the content of the duty of care. Until that has been done, one cannot determine whether the evidence establishes that there has been a breach of that duty. 42 Eaton at p 388. 43 Reasons [4]; Amended Statement of Claim, paragraph 4 (AB 745); Amended Defence, paragraph 6 (AB 760). -- 11 of 34 -- 12 [41] The principles applicable to this area of the analysis are not in doubt. They were listed by Gummow J in Roads and Traffic Authority (NSW) v Dederer:44 “First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.” [42] The determination of the content of the duty of care involves the two-step process set out in the Wyong Shire Council v Shirt:45 “In deciding whether there has been a breach of the duty of care the 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. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the 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.” [43] The first step is to ask whether a reasonable man in the Hospital’s position would have foreseen that their conduct involved a risk of injury to Ms Downes. That inquiry focusses on the risk involved. The second step comes if the answer to the first step is 44 [2007] HCA 42 at [18]. Internal footnote omitted. 45 (1980) 146 CLR 40, 47- 48 per Mason J. -- 12 of 34 -- 13 that a reasonable man would have foreseen a risk, in which case the question becomes: what would a reasonable man do by way of response to that risk? Foreseeable risk of injury [44] The learned trial judge identified the risk for which Ms Downes contended: “At the most basic level, the plaintiff's case is premised on the foreseeability of risk of injury, particularly to her back, by being placed in any avoidable situation where manual handling of a patient became necessary.”46 Thus the risk was that Ms Downes might injure her back from handling a patient. [45] As to the lifting involved in the repositioning of the patient on the bed, the Hospital accepted that there was a risk of injury inherent in the method of manual handling described by Ms Downes, and which was reflected in the Intersafe Report and Mr Ludcke's evidence.47 [46] The learned trial judge referred to the evidence and admissions concerning what the Hospital knew about Beryl and the risks she posed for the staff caring for her.48 That included that: (a) Beryl had a past history of post-anaesthetic hallucinations; (b) the Hospital had conducted a falls risk assessment and determined that Beryl was specifically at risk of collapse on her first walk after surgery, and generally at risk of collapse post procedure, and a moderate falls risk; (c) the Hospital had concluded that Beryl should have an alert symbol above her bed, the bed should be lowered to the lowest possible point when staff were not present, and two staff were to be involved in transfers to the shower or toilet on the first day, with the use of a shower chair; (d) the Hospital knew Beryl was functionally deaf, suffered short term memory loss and had difficulty in responding to questions. [47] On that basis the learned trial judge found that there was a foreseeable risk of injury, in these terms: “a risk of injury to the [Hospital’s] nursing staff was reasonably foreseeable, if appropriate steps were not taken to avoid or minimise the risk of such staff being put in a position where some manual handling of this patient was required and particularly if this occurred in a sudden or unusual way”.49 Reasonable response to the risk [48] Having found that there was a foreseeable risk of injury, the learned trial judge then posed the next questions as whether it was established that: (i) the Hospital had 46 Reasons [57]. 47 Reasons [65]; Hospital’s written submissions at trial, paragraph [93]. 48 Reasons [72]-[73]. 49 Reasons [74]. -- 13 of 34 -- 14 unreasonably failed to take steps to remove or guard against the risk; and (ii) if so, whether any breach was causative of Ms Downes’ injury.50 [49] The learned trial judge then listed the steps which were contended to have been unreasonably omitted:51 (a) the Hospital should have had a bed with full length side rails; (b) the bed should have been, but was not, lowered to the lowest level; (c) no alert symbol was placed above the bed; and (d) generally, and as was required in respect of her, Beryl was not provided with more than a standard level of care or nursing attention. [50] His Honour made no finding as to what a reasonable man would have done by way of response to the identified risk, but proceeded to discuss each of the listed omissions. Bed at lowest level [51] The first was the contention that the bed should have been lowered to its lowest level. As to that the learned trial judge said:52 “As has already been noted and in respect of a failure to ensure that [Beryl’s] bed had been lowered to the lowest level, such an omission could only have significance as a causative factor in [Ms Downes’] injury, if it were accepted that the injury occurred as a consequence of some involvement of [Ms Downes] in manually handling [Beryl], where such a failure was a relevant circumstance. That is if it was accepted, for instance, that [Ms Downes] was involved in supporting [Beryl] when she was teetering on the side of the bed and unable to reach the floor and thereby assisting in stabilising herself, in that situation.” [52] The reference to it having “already been noted” is a reference to paragraph [59] of the Reasons, where his Honour said:53 “… the allegation which is based upon a failure of the [Hospital] to ensure that [Beryl’s] bed was put at its lowest level and such as would have allowed her to steady herself by using her unaffected leg upon the ground and when she was at the side of her bed, critically depends upon a finding that [Ms Downes] was involved in supporting her at the side of her bed and when she was attempting to move from it and to a standing position on the floor.” 50 Reasons [75]. 51 Reasons [76]. 52 Reasons [77]. Emphasis added. 53 Emphasis added. -- 14 of 34 -- 15 [53] In my view, it is clear from those passages that the learned trial judge has not made a finding as to the breach of duty in respect of this contended omission, but rather has gone straight to the issue of causation. His Honour seems to have answered the question whether, assuming a breach of the duty of care, was the injury caused by the breach? The phrase used by his Honour is as to a consideration of whether the “omission could … have significance as a causative factor” in the injury, noting that consideration of that issue depended on the ability to find that the facts as to the manual handling of Beryl were in accordance with Ms Downes’ evidence. The question of breach of the duty of care did not depend on those facts, but rather on whether the bed should have been, but was not, lowered to its lowest level. [54] However that may be, Ms Downes did not seek to challenge the findings in respect of the issue of the bed being lowered to its lowest level. Bed with full length cot rails [55] The second omission dealt with was that a bed with full length cot rails or side rails should have been used. Before discussing this ground, there is some benefit in noting the evidence as to the existence of such beds at the Hospital. Evidence as to beds with full length cot rails [56] In her examination in chief Ms Downes was asked whether she had seen beds with full length cot rails in the hospital. She said “Yes, there are some in intensive care.”54 That was the extent of her evidence as to their existence at the hospital. [57] Ms Downes was cross-examined by reference to that evidence, but it was not challenged:55 “You mentioned yesterday that in ICU but not in the surgical ward, they have some beds where there’s no gap at the end?---That’s right. Do you remember giving that evidence yesterday?---Yes. That’s right.” [58] Ms Downes said that there had only been one occasion in her 40 years of nursing, in 2005, where a patient had squeezed between the rails and the end of the bed.56 On that occasion she found the patient already out of bed, three steps away from it.57 [59] The cross-examination then proceeded with this exchange:58 “And, in any event, given that it’s a relatively common occurrence, that people might get up during the night, you’re not advocating that every bed in the surgical ward should have been changed so that there 54 AB 42. 55 AB 136. 56 AB 136-137. 57 AB 143-144. 58 AB 137. -- 15 of 34 -- 16 were no beds with cot sides in them?--- Well, perhaps that would have been safer to have the cot side right along every bed. I see. So because one gentleman and [Beryl] had squeezed out of that gap in the 40 years of your nursing life we should have replaced every bed in the surgical ward should we, Mrs Downes? Is that what you’re suggesting?---Well, it would have been safer I would think.” [60] Ms Downes accepted that replacing all beds in the surgical ward because of one previous incident would have been an extreme response.59 [61] Senior counsel for the Hospital was aware that the issue of using a bed with full length rails was a likely way that the case for Ms Downes would be put. In the course of eliciting the evidence from Ms Downes that it would be an extreme response to replace all beds in the surgical ward with full length rail beds, this exchange occurred:60 “HIS HONOUR: It isn’t the issue as to whether such a bed should have been utilised for this patient with the knowledge as to what the risks were? MS TRESTON: Well, that - no doubt that will be how the case develops. That suggests that there’s a particular sort of knowledge that dictates a particular sort of bed for the particular patient on the particular night. Yes. I apprehend that’s - - HIS HONOUR: I’m just wondering whether that’s the issue rather than this broader issue that you’re asking her about. MS TRESTON: Well, it goes to the fore thought versus hindsight issue. HIS HONOUR: All right. MS TRESTON: Which I’ll be taking your Honour to later.” [62] Evidence was given by Ms Billman, the nurse unit manager at the hospital. In the course of re-examination the learned trial judge asked the following:61 “Was it possible to have a bed with a full-length rail on it?---No. Why not?---It’s against Australian standards. There’s certain standards--- Were there not some of that kind in the hospital?---No. All the rails have a gap at the top and the bottom.” [63] Mr Ludcke, an engineer, gave a report in which he offered the opinion that, one way of addressing the fact that Beryl had attempted to get out of bed through the gap “between cot side and bed end”, was “[c]losing the gap in the cot sides”. He suggested that 59 AB 137. 60 AB 137. 61 AB 368. -- 16 of 34 -- 17 “[f]itting of alternative cot sides, or widening the existing ones to close or narrow the gap, will reduce or eliminate the ability of a person to slide through the gap at bed level.” He considered that such an approach “could have prevented the incident involving Ms Downes”, even though it was possible that some patients may attempt to exit by climbing over bed rails.62 [64] In his evidence he was asked to refer to that topic. He made these points: (i) there was an applicable Australian Standard for hospital beds, but he had no idea why there was a gap at the end of the railings; (ii) he did not look at the design standard for cot beds before drawing his conclusion in the report; (iii) he “did research on cot bed manufacturers to understand that”, and “based on [his] experience at undergraduate university, there were beds around with full length cot rails”; and (iv) there were hospital beds around with full length cot rails.63 [65] The learned trial judge summarised the rival contentions on this ground. First, for Ms Downes: (i) there was no reason why Beryl could not have been put in such a bed; (ii) a small number of such beds should be available for high risk patients; (iii) if she had, it is unlikely she would have got out of bed; and (iv) even if she had attempted that, it is likely she would have been heard prior to escaping, and the exposure to manual handling would have been avoided.64 [66] Then, for the Hospital:65 (a) there was no evidence of the cost of providing such a bed, particularly given the large volume of surgical procedures on elderly and hard of hearing patients who would, on that contention, require such a bed; (b) the enquiry directed to replacing the bed for Beryl was an incorrect approach as it assumed that every such patient ought to have been given such a bed; (c) as Mr Ludcke had not been able to explain why the normal hospital bed had a gap at the end, replacing that bed with another bed had not been shown to be a reasonable response to the risk; and (d) it had not been established that the cost of replacement, compared to the magnitude of the risk, was reasonable. [67] It is noteworthy that each of the matters referred to in those paragraphs were matters directed at whether replacing the bed with one that had full length cot rails was a reasonable response to the risk, not at causation. [68] The learned trial judge dealt with those contentions in this way:66 62 Report by Intersafe, 18 May 2011; Section 6.5, paragraph 1; AB 450. 63 AB 265-266. 64 Reasons [78]. 65 Reasons [79]. 66 Reasons [80]. -- 17 of 34 -- 18 “However and for the plaintiff it is also correctly pointed out that: (a) the bed in which the plaintiff was placed had a gap of approximately 450 mm between the end of the cot rail and the upright panel at the foot of the bed and that on the plaintiff's evidence, it was through this gap that the patient attempted to exit the bed; (b) the uncontradicted evidence of the plaintiff was that beds with full length cot rails were available and in fact used in the intensive care ward at the hospital; and (c) the Australian Standard to which the defendant refers, post- dates the incident but in any event provides that the distance between the head panel or foot panel and side rail must be either less than or equal to 60 mm or greater than or equal to 235 mm.” [69] The first line should be read as though it had two commas: “However, and for the plaintiff it is also correctly pointed out that, ...”.67 Once that is understood it is clear, in my view, that this paragraph is the learned trial judge’s findings by way of answer to the Hospital’s contentions on breach of duty in respect of this alleged omission: see paragraph [66] above. The paragraph is not just a recitation of matters correctly raised by Ms Downes. [70] The first point68 refers to the fact that it was Beryl, and Beryl alone, who attempted to get out, and she did so via a gap of about 450 mm. Thus (implicitly) if the gap was not there, it would have impeded that attempt. That was an element tending to the reasonableness of responding to Beryl’s situation by using a bed with no gaps. [71] The second point69 answered the contention as to there being no evidence as to reasonableness or cost of using a full length cot rail bed. Such a bed was available, and in use in ICU. Implicit in that finding is the further finding that, since it was already owned by the Hospital, there was no cost element that would have militated against its use. [72] The third point70 answered the contention that the Australian Standard in evidence had any relevant impact. [73] The finding in Reasons paragraph [80](b) was that a bed with full length cot rails was available, because it was close by in the same hospital’s intensive care unit. Notwithstanding the evidence given by Ms Billman (see paragraph [62] above) to the effect that there were no such beds, there was no challenge to the finding that 67 It is evident from other parts of the Reasons that the learned trial judge’s writing style omitted commas in such places; for example, paragraphs [41], [43], [49] second sentence, [63], [64] third sentence, [65] second sentence, [69] second sentence, [77], and [81]. 68 Reasons [80](a). 69 Reasons [80](b). 70 Reasons [80](c). -- 18 of 34 -- 19 Ms Downes’ evidence in that regard was unchallenged. No notice of contention was filed seeking to overturn that finding. [74] However, even though such a bed was available the learned trial judge found that it would not have reduced or eliminated the risk:71 “Further and to the extent that there is a broader contention, that a precaution of having placed the patient in a bed with full length side rails would not have exposed the plaintiff to the situation that led to her injury, the contention is otherwise speculative. Whilst it may be considered that a bed with a full-length side rail may have presented a greater obstacle or impediment to an attempt by the patient to get out of the bed, it does not follow that it would have been sufficient to prevent any such attempt or that the presence of such an impediment may not have provided potential for the situation of the plaintiff being brought into a position of manually handling the patient in an even more precarious situation of attempting to climb over the side rails.” [75] As that passage reflects, the learned trial judge rejected the contention, that provision of the bed with full length cot rails would have obviated the risk, as being speculative. The learned trial judge accepted that such a bed may have presented a greater obstacle or impediment to getting out of bed, but that it would not have prevented such an attempt, and it may have resulted in Beryl climbing over the rails and thus presenting an even greater risk. [76] In my view, there are difficulties with that part of the learned trial judge’s reasoning. The risk identified was that staff might be injured if they were put in the position where manual handling of Beryl was required, and particularly if that occurred in a sudden or unusual way. The duty of care required that risk to be avoided or minimised. That provides the framework for the analysis of whether the provision of a full rail bed would have avoided the risk. [77] Guidance was given in Wolters v The University of the Sunshine Coast,72 where Gotterson JA said: “[40] As noted, in Sabatino, Mason P reminded, as Gaudron J had pointed out in Bennett v Minister of Community Welfare, that in cases of negligence by omission, a finding of liability is necessarily based upon a hypothetical inquiry. Here, as principle required, the primary judge set about such an inquiry. It was into whether the incident (and hence injury) would have been avoided if the respondent had discharged its duty of care by taking appropriate action to reprimand and counsel Mr Bradley. That the incident occurred is a historical fact. Whether it would have been avoided is not, of itself, a fact. It is a conclusion with respect to the likelihood 71 Reasons [81]. 72 [2014] 1 Qd R 571, at [40]-[42]. Internal footnotes omitted. -- 19 of 34 -- 20 that the incident would have been avoided had the duty been discharged. The objective of the inquiry undertaken by the primary judge was to assess the likelihood of that. [41] The frame of reference for such an inquiry is set by reference to that which the duty of care required have been done. The inquiry is undertaken by assessing all relevant facts and circumstances from which a conclusion is then drawn as to the likelihood that the performance of that which the duty required have been done, would have avoided the incident. [42] The integrity of the inquiry is therefore dependent upon both a precise articulation of what it is that the duty of care required and an appraisal of all relevant facts and circumstances in order to assess likelihood. A failure to articulate the former or to undertake the latter risks a miscarriage of the inquiry and a resultant lack of legitimacy in the ultimate conclusion drawn from it.” [78] As can be seen from that passage, the inquiry is directed to whether the omitted step would have avoided the incident which happened. Here Ms Downes’ case was that the incident occurred when Beryl attempted to get out of bed, or had got out of bed. However, in either case the way out of bed was via the gap between the end of the rails and the end of the bed. Had a bed with full length cot rails been provided there would have been no gap to use. Hence Beryl’s means of getting out, on either case, would likely have been prevented. [79] In my view, that the learned trial judge’s inquiry strayed from the proper frame of reference can be seen from his referring to such a bed not preventing “any such attempt” to get out of bed, and that the presence of such a bed may have created an “even more precarious situation” of attempting to climb over the side rails. Neither focusses on the incident alleged, that is Beryl got out of bed via the gap. [80] The evidence supported the conclusion that had the bed with full length cot rails been provided then the incident where Beryl got out of bed via the gap at the end would likely have been prevented. Thus the risk would have been avoided. Need for heightened vigilance [81] The learned trial judge found that the Hospital breached its duty of care in respect of its “inexplicable omission” to ensure that information specific to Beryl was brought to the attention of the nursing staff, including by way of recommending the placement of an alert symbol on her bed. Nurse Billman conceded that “awareness of this information was likely to have led to identification of a need for precautionary steps and heightened vigilance in the care of Beryl”.73 73 Reasons [103]-[104]. -- 20 of 34 -- 21 [82] His Honour’s finding was in these terms:74 “As was implicitly conceded by Nurse Billman, some risk of injury was foreseeable. Clearly the [Hospital] could have taken steps to further minimise that risk and the failure to do so, by way of specific notation, for the benefit of the nursing staff, such as [Ms Downes], of the information expressly gathered in the pre-admission and admission processes and therefore the need for heightened vigilance in the care of [Beryl], was largely unexplained and in the circumstances and more likely than not, unreasonable.” [83] The Hospital was granted leave to file a Notice of Contention, seeking that the finding of no breach of duty should be substituted in respect of the heightened vigilance issue. The essence of the contention was that: (i) the evidence of what Ms Downes already knew about Beryl was sufficient for her to be aware of the need for heightened vigilance and therefore closer monitoring than normal; and (ii) there was no evidence of a better system for handover.75 [84] That contention did not really meet the pleaded case, which was that the Hospital, being aware of all it knew, should have: (i) developed a better system for the handover in respect of Beryl, and not left matters to Ms Downes to adopt or to chance; and (ii) developed a better care plan that resulted in more staff caring for Beryl or better advice to Ms Downes about that care.76 The evidence of Ms Billman was that had she been aware of Beryl’s particular circumstances, she would have directed her staff to provide additional care, at the least by way of more frequent observations.77 The evidence of Dr Barnett was that the Hospital had specific information as to some particular risks in relation to Beryl’s care, assessment of which would call for some measures, such as an alert symbol over the bed, to warn the staff. [85] In my view, it was open to the learned trial judge to rely, as he did, on the evidence of Ms Billman and Dr Barnett to conclude that more should have been done in the handover to ensure that all the available information was passed on at handover, and more to make clear to Ms Downes the need for heightened vigilance. [86] The ground raised in the Notice of Contention has no merit. Causation generally [87] The learned trial judge found that he could not be satisfied that there was a causal link between the negligence and the injury suffered by Ms Downes. 74 Reasons [104]. Internal footnotes omitted. 75 Respondent’s outline paragraphs 41-44. 76 Amended Statement of Claim paragraph 6(ai)(v) and (e), AB 748, 750; Applicant’s outline paragraph 33. 77 AB 327. -- 21 of 34 -- 22 [88] In Bennett v Minister of Community Welfare78 Gaudron J said: “The case against the Minister was based on an omission or failure to act, rather than on the doing of some positive act. There are occasions when a failure to do something may have a direct physical consequence such that the failure and the consequence may together be viewed as a positive act. Thus, a failure to keep a proper look out may lead directly to one motor vehicle being driven into another. In situations of that kind the physical act of driving one car into another, rather than the failure to keep a look out, will ordinarily be treated as the act by reference to which questions of causation are to be answered.” … Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened.” [89] Put into terms that match this case, the omission was the failure to use a bed with full length cot rails. That had a direct physical consequence, namely Beryl got out of bed via the gap in the rails and Ms Downes had to act to put her back to bed. For that reason the omission and the positive act are treated as the act by reference to which questions of causation are to be answered. The two together mean that they are treated as a single positive act. The consequence is that the question of causation is answered by reference to what actually happened. [90] The burden of proof on the issue of causation lies on Ms Downes as plaintiff in the case.79 The task is a hypothetical examination of whether, had the Hospital taken reasonable care, Ms Downes’ injury would have been avoided or materially reduced. There are two aspects that need to be established: (i) that the negligence was a necessary condition of the occurrence of the harm; and (ii) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.80 Those two aspects are what is comprehended by the “value judgment” based on “common sense” in March v Stramare (E & MH) Pty Ltd.81 [91] The first aspect is sometimes called factual causation, concerned with whether the negligent conduct played a part in bringing about the harm. The second aspect concerns a normative question: whether the defendant should be held liable to pay damages for that harm. 78 (1992) 176 CLR 408, at 419, 420. 79 Purkess v Crittenden (1965) 114 CLR 164. 80 Reflected in s 11 of the Civil Liability Act 2003 (Qld). 81 (1991) 171 CLR 506; [1991] HCA 12. (March v Stramare) -- 22 of 34 -- 23 [92] The first aspect, factual causation, requires the application of the “but for” test:82 that is, but for the negligent omission to supply a bed with full length cot rails, would the harm have occurred? In doing so it must be borne in mind that the “but for” test is not a comprehensive or exclusive causation test.83 [93] It is at the point of the first aspect of the analysis that Ms Downes’ case confronts the adverse findings of the learned trial judge as to her (and Ms Wendland’s) reliability. Those findings are set out in paragraphs [20] to [21] above. [94] The difficulty is one discussed by Hayne J in Pledge v Roads and Traffic Authority,84 a case where the plaintiff, who had been hit by a car, sought damages on the basis that the Road Authority should have cleared foliage which obscured the road: “The role which a particular act or omission played in the occurrence of an event can often be identified by asking what would have happened if the act or omission had not occurred. This kind of counterfactual inquiry may not always be easy. In this case, asking what would have happened if the foliage had been trimmed or cleared from the vicinity of the edge of the median strip led the Court of Appeal into attempting to calculate the time for which the pedestrians would have been visible to Mr Pledge. There were too many uncertainties in the evidence for the Court to make a calculation of that kind.” [95] The findings by the learned trial judge were that he could not rely on the evidence of either Ms Downes or Ms Wendland as to the factual circumstances surrounding the alleged injury. Specifically that meant he could not be satisfied, on Ms Downes’ evidence, that the injury was sustained at the start of the interception of Beryl, when she was holding her partly on the bed, and twisting her back. It will be recalled that there were a number of versions given by Ms Downes that said her injury was sustained later in the process, when she and Ms Wendland were lifting Beryl along the bed. If that were so then it was, on Ms Downes’ evidence, sustained as part of an exercise directly contrary to well established and known training in the no-lift policy. On Ms Wendland’s evidence, the lift along the bed was not done as described by Ms Downes. [96] The Hospital had a no-lift policy and Ms Downes had been trained in the “O’Shea No Lift System”, which included training on more than one occasion from a physiotherapist, Mr Robertson.85 That system was to train the nurses in risk minimisation, and how 82 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; Amaca Pty Ltd v Ellis [2010] HCA 5. 83 March v Stramare; Roads and Traffic Authority v Royal [2008] HCA 19. 84 [2004] HCA 13, at [15]. 85 AB 32-33, 100, 110-113, 121-124. Mr Robertson was a qualified trainer in the O’Shea No Lift principles: AB 382-384. -- 23 of 34 -- 24 to use body mechanics in the most effective way to get the job done.86 Ms Downes said that the nurses in the Hospital “were using the no-lift policy most of the time”.87 [97] Ms Downes agreed that once Ms Wendland let the cot side down on the bed, and the two of them started to get Beryl back into bed, “it was then just a case of you using your training to get the patient back into bed”.88 Further, she agreed that a training video that Ms Downes had seen as part of her training89 “gives us all sorts of examples of ways in which you might do that in terms of working close to the patient’s body to move them”.90 [98] Further, Ms Downes described the method that she said she and Ms Wendland used to move Beryl up the bed: she and Ms Wendland stood side by side, put their arms under Beryl and shuffled her up the bed.91 She agreed that it was “a most unusual way of transferring a patient up the bed”.92 [99] Mr Robertson was asked to comment on the manoeuvre of getting Beryl back into bed from the teetering position described by Ms Downes. His evidence was:93 “With a patient that's teetering on the edge of a bed, I wouldn’t say that lifting that patient back into bed would be necessary. You’d either be stabilising them where they are and tipping them back onto the bed and utilising the slide sheets and that sort of stuff … that’s available equipment-wise to assist that, and that’s a major part of what we teach in those packages …” [100] Dr Ludcke’s report concentrated on the manoeuvre in getting Beryl back onto the bed, but not the process of moving her up the bed.94 [101] The evidence referred to above amply supported the learned trial judge’s finding that the training in techniques to avoid injury in moving a patient up the bed was adequate in the circumstances,95 if not thorough,96 and that the manoeuvre described by Ms Downes 86 AB 384. 87 AB 133. 88 AB 125. 89 And which was shown to her in court. 90 AB 126. 91 AB 127. 92 AB 127-128. 93 AB 392. 94 Reasons [65]. 95 Reasons [68]. 96 Reasons [63]. -- 24 of 34 -- 25 was unequivocally non-compliant with the no-lift policy.97 Those findings were not challenged in this Court. [102] Once Beryl was back on the bed the emergency situation that was described by Ms Downes had ended. All that remained was for the two nurses to move Beryl back up the bed, a task with respect to which Ms Downes had received thorough training from the Hospital.98 [103] The learned trial judge had the advantage, which this Court does not, of seeing and hearing Ms Downes and Ms Wendland give evidence. That advantage must be given substantial weight in the exercise of determining whether his Honour’s findings as to reliability should be overturned.99 Those findings underpin the learned trial judge’s rejection of a causal link between the negligence and the injury. [104] In Bulsey & Anor v State of Queensland100 this Court referred to the governing principles that apply where an appellate court reviews findings of fact: “[58] The governing principle is that appellate courts must make ‘proper allowance for the advantages of the trial judge’ but that if, having done so, ‘they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute’. In a passage in Devries v Australian National Railways Commission cited in Fox v Percy, Brennan, Gaudron, and McHugh JJ adopted an observation that appellate intervention is justified where ‘it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” …’. The two examples of such cases mentioned in this passage upon which the respondent relied are not the only kinds of cases which meet that test. For example, particularly where there has been a very long delay in judgment after trial, an appellant might demonstrate that there must have been such a mistake in the ‘recollection … of evidence” as justifies appellate interference.’” [105] Senior counsel for Ms Downes referred to what was said by the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd101 and Bulsey,102 namely that the mere fact of long delay weakens a trial judge’s advantage, and that a trial judge in that circumstance must put beyond question any suggestion that he or she has lost an understanding of the issues. Expectation and Bulsey were cases where the findings 97 Reasons [70]. 98 Reasons [63]-[64], [68]. 99 Fox v Percy (2003) 214 CLR 118. 100 [2015] QCA 187 at [58]. (Bulsey) Internal footnotes omitted. 101 (2004) 140 FCR 17 at [69]-[72]. (Expectation) 102 [2015] QCA 187 at [58]-[63]. -- 25 of 34 -- 26 were as to credit, and though the principle is not so confined, they must be read in that context. The Full Court in Expectation said: “[71] In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. [72] In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]).” [106] Notwithstanding the delay of 21 months between the trial and judgment, the learned trial judge’s analysis of the evidence relevant to his finding that he could not be satisfied as to the reliability of the two witnesses, meets the requirements in the passage above from Expectation. [107] There is no challenge to the findings as to the unreliability of the evidence given by Ms Downes and Ms Wendland as to the circumstances surrounding the alleged events. The learned trial judge did not base his findings on the credit of the two witnesses, but on their reliability. Central to that conclusion were the inconsistent accounts given by each of them, and the stark differences between the two accounts. Causation in respect of the heightened vigilance breach [108] The learned trial judge recognised that the assessment of causation involved a “careful assessment of the likely responses to a situation where there was no breach of duty”.103 The contention here was that the instructions or information that should have been given would have enabled Ms Downes to “proactively address, in a more timely way, attempted movement by Beryl”, and that “seconds mattered”.104 [109] Ms Downes gave evidence as to what she might have done differently had she known more. It came down to going into the room more frequently to observe Beryl, and 103 Reasons [105]. 104 Applicant’s amended outline paragraph 30. -- 26 of 34 -- 27 perhaps sitting at or near the door.105 In cross-examination she explained that the reason for nominating that she would have sat at the door was that Beryl was confused and she had tried to get out of bed.106 To that she added that if she had known that Beryl was completely deaf she “would have been … much more concerned”,107 and that would have led to her going into the room more frequently than she did.108 [110] However, it was the fact that Beryl’s room was closest to the nurses’ station and the door was open. Even if she had gone in more frequently, or sat at the door, that did not mean that Ms Downes could ignore the other patients for whom she was responsible, and inevitably she would have to have been absent from Beryl’s room from time to time.109 It was no part of the case that the reasonable response to the risk was to have dedicated one-on-one care, with the nurse dealing only with Beryl. [111] That state of the evidence led the learned trial judge to conclude that if the need for heightened vigilance had been brought to Ms Downes’ attention she would not have done anything materially different:110 “As is clear from her evidence, [Ms Downes] did not suggest an approach where she would have been in a position immediately beside [Beryl’s] bed and therefore in a position to respond as soon as she might have stirred. Whilst a position at the doorway to the room may have assisted in a faster response, it must be kept in mind that [Ms Downes] was not much further away at the nurses’ station, when alerted as to Beryl’s movement and said that she responded within seconds. Also it can be noted that it was [Ms Downes’] evidence that the recorded handover observations had included some notification of an earlier incident, where Beryl had demonstrated confusion and was shaking the side of her cot and this had caused in her mind a thought: “Oh, hope she doesn't fall”. However, that did not have any result that [Ms Downes] adopted any particular response by way of heightened vigilance or any adapted approach to the care of [Beryl].” [112] Further, the evidence established that Ms Downes was told or knew much, before the events when Beryl got out of bed, that went to the need for particular attention to Beryl: (a) she had short term memory loss;111 105 AB 24, 84. 106 AB 84. 107 AB 85. 108 AB 84. 109 As found by the learned trial judge at Reasons [107]. 110 Reasons [106]. 111 AB 17. -- 27 of 34 -- 28 (b) she was elderly, with skin like tissue paper and dry;112 (c) she was restless and confused;113 (d) she had been trying to get out of bed;114 (e) she had been shaking the sides of her bed;115 that and her confusion, led Ms Downes to think “oh, hope she doesn’t fall”;116 (f) she had done well post-operatively until she experienced a sudden drop in spinal anaesthetic, but she settled with intramuscular morphine;117 (g) she had been reluctant to keep her legs straight in the pillow provided for that purpose, and needed some reinforcement to do so;118 (h) she was a bit deaf;119 and (i) she was small, to the point that Ms Downes “was very worried about her because she was so little”.120 [113] Those matters amply justify the finding that Ms Downes would likely have done nothing materially different. Ultimate finding on causation [114] The ultimate finding was that “it has not been established, on the balance of probabilities, that any … breach of duty, was causative of any injury to [Ms Downes]”. In my view, for the reasons given above, the proposed grounds of appeal challenging that finding have no merit. Damages [115] Given the conclusions above, there is no need to address the ground concerning damages for past economic loss. Conclusion and orders [116] For the reasons given above the proposed appeal points do not succeed. Therefore leave to appeal should be refused. 112 AB 17. 113 AB 17, 18, 59. 114 AB 59. 115 AB 17, 60. 116 AB 17. 117 AB 61. 118 AB 62. 119 AB 67. 120 AB 24. -- 28 of 34 -- 29 [117] I would propose the following orders: 1. The application for leave to appeal is refused. 2. The Notice of Contention is dismissed. 3. The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis. [118] PHILIP McMURDO JA: The detailed reasons of Morrison JA make it unnecessary for me to discuss at any length the evidence and the reasons of the primary judge. Morrison JA has concluded that the respondent was negligent by failing to use for this patient, a bed with full length side rails. Had such a bed been used, the incident by which the applicant and another nurse had to take the weight of the patient in putting her back to bed would not have occurred. I agree with that analysis. [119] The respondent owed a duty to take reasonable care to protect its employees, such as the applicant, from a risk that an employee would be injured in having to physically support and manage, in a circumstance of some urgency, the weight of a patient. Clearly there was such a risk and it was reasonably foreseeable. The content of that duty was affected by several considerations as set out in Wyong Shire Council v Shirt.121 In this case, the magnitude of the risk and the degree of probability of its occurrence were heightened by the circumstances of this patient which were well known to the respondent. The patient had an unusually high tendency to wander from her bed. There was a particular risk to the patient from that course because only a few hours earlier, as an 89 year old woman, she had acquired a new hip. If she did get out of her bed, there would be a need for her to be returned to bed as quickly and safely as possible. [120] As Morrison JA has explained, the provision for this patient of a bed with full length side rails was required as a reasonable response to the risk. Such a bed would have provided, at the very least, a substantial impediment to the patient in attempting to leave it. As to a suggested expense, difficulty or inconvenience of providing such a bed, as Morrison JA has explained, such a bed was available in this hospital and could and should have been used for this patient. The respondent was thereby negligent. As Morrison JA has also explained, had this patient been in a bed with full length side rails, she would not have left the bed. The risk of injury to the applicant from having to prevent the patient falling and having to restore her to the bed, could and would have been avoided. The applicant’s case was that the risk did eventuate and that she was injured in the course of preventing a fall and restoring the patient to her bed. [121] But Morrison JA has concluded that this negligence was not a cause of the applicant’s injury, because of the possibility that the injury occurred not in the course of putting the patient back onto the bed, but in the course of then moving her on the bed. His Honour has concluded, in effect, that it was at least as probable that the injury was suffered in that second stage as it was that it was suffered in the first. Because the relevant risk, against which the applicant was to be protected, had passed once the 121 (1980) 146 CLR 40, 47-48. -- 29 of 34 -- 30 patient was back on the bed, it was not proved that the respondent’s negligence was a cause of the injury. I respectfully disagree. [122] At the trial, much was made in the respondent’s case of inconsistencies between the various accounts of the incident which the applicant had given in the preceding years. The primary judge thought that many of these inconsistencies were insignificant.122 But some were relevant, in his Honour’s view. He described the difference between some accounts, by which the applicant caught the patient as she was “teetering on the edge of the bed” and others where the patient was already out of bed and using the walking frame. That subject, the precise location of the patient when she was first supported by the applicant, was or should have been unimportant. The inconsistencies on that subject were potentially relevant to the applicant’s credibility. But the trial judge rejected any suggestion that the applicant was a dishonest witness, holding that the inconsistencies went only to her reliability as a witness of the “circumstances of the critical incident”.123 And this subject was ultimately irrelevant to the matters which had to be proved in the applicant’s case. As the trial judge said at one point:124 “In this regard and notwithstanding the observations which have been made as to the reliability of each of the witnesses to the incident and as to precisely what did occur, both the plaintiff and Nurse Wendland gave evidence that there was an incident that involved the plaintiff first coming into contact with the patient, by way of some manual handling and that both of them were then involved in further manual handling of her in order to return her to bed.” It did not matter whether the patient was first found at the edge of the bed or on the walking frame: she was found in a position where she had to be supported and moved in a way that involved a foreseeable risk of injury to the applicant. [123] Another subject on which the applicant had provided inconsistent accounts was what the primary judge described as “the onset of pain”.125 Her evidence was that she felt pain at the point when, having stopped the patient from falling, the applicant “twisted” in her efforts to hold the patient safely. In cross-examination she was taken to a statement which she had signed in November 2008 in which she had said that she didn’t feel any pain in her back “until later”. She was pressed on the inconsistency between that statement and her evidence as to when she had felt pain. The applicant answered that the November 2008 statement was incorrect because she did feel the pain “straight away”. In the same statement she said: “Even though I didn’t realise I had damaged my back, I said in her chart about the incident but nothing about my back.” 122 [2015] QDC 195, [36]. 123 [2015] QDC 197, [49]. 124 [2015] QDC 197, [57]. 125 [2015] QDC 197, [39]. -- 30 of 34 -- 31 The reference to the “chart” was to the record kept on the treatment of the patient upon which the applicant made a note recording the patient leaving the bed a few hours after that happened. Again there was an inconsistency between the statement and her evidence that she felt pain immediately and before the patient was back in her bed. Again the applicant said that the statement was incorrect in that respect. [124] On the same subject, the trial judge noted that in a medico-legal report of February 2009, it was recorded that the applicant had experienced “severe back pain at the time [of supporting the patient]”126 although in the report of another doctor of May 2009, the applicant was recorded as saying that she was aware of a twisting effect on her back as she took hold of the patient but that she suffered lower back pain “within about two hours [of the incident]”.127 In a report by a mechanical engineer, who gave opinion evidence on the subject of workplace safety and ergonomics, it was recorded that the applicant had said that she could recall a twisting action on her back but the pain was felt only “several hours later”.128 [125] These inconsistencies as to the onset of pain were relevant to a question of whether the applicant had suffered an injury at all, at least in the course of anything which had happened with this patient. That question was determined by the trial judge in the applicant’s favour. Having carefully considered the medical evidence, his Honour said that:129 “The plaintiff’s claim for an injury in the nature of aggravation of underlying lumbar spondylosis, is supported by all of the medical evidence, on the basis of a broad history of acting to prevent a patient from falling from a bed and in doing so, twisting her back, on 25 July 2007.” His Honour noted that each of the medical opinions depended upon the acceptance of the applicant’s evidence that prior to the incident her back had been asymptomatic.130 But his Honour went on to accept the applicant as an honest witness and to assess her damages on the basis that:131 “[She] suffered an injury in the nature of an aggravation of the degenerative condition of her lower back (or lumbar spondylosis) on 25 July 2007 and that, a consequence was that a previously asymptomatic condition became a symptomatic one.” [126] The inconsistencies in the applicant’s accounts of the onset of pain did not suggest that the applicant’s injury was suffered only after the patient was back on the bed. On 126 [2015] QDC 197, [39]. 127 [2015] QDC 197, [40]. 128 [2015] QDC 197, [42]. 129 [2015] QDC 197, [23]. 130 [2015] QDC 197, [23], [34]. 131 [2015] QDC 197, [111]. -- 31 of 34 -- 32 no view of her November 2008 statement was the applicant saying that it was at that point in time that she felt pain. In that statement the applicant said: “9. She was hanging out of the bed with her feet down trying to get out. I believe she was trying to get to her walker…I tried to grab her around the waist to stop her from falling. She is only a little lady but I was very worried about twisting her hip which had just been operated on… 10. I didn’t bend at the knees but I didn’t have to go over far enough for that to be an issue. I didn’t feel any pain in my back until later. I yelled to [Ms Wendland] as I grabbed the lady. ... 14. Even though I didn’t realise I had damaged my back, I said in her chart about the incident but nothing about my back. I ended up filling out an incident sheet a week later. It wasn’t until the 6th August that I went to the doctor…” [127] In her various accounts of the onset of pain, there were two possibilities. One was that she suffered pain as soon as she took the weight of the patient and engaged in the twisting exercise, before the patient was back in the bed. The other was that pain was felt only some hours later. [128] Another inconsistency was that between the applicant’s evidence and the evidence of Ms Wendland about what was done with the patient once she was back on the bed. On the applicant’s evidence, both nurses were on the patient’s left hand side, the applicant holding her upper body and Ms Wendland holding her legs, as they moved the patient a foot or two towards her pillow. The effect of Ms Wendland’s evidence was that although she could not recall “exactly how we moved the patient back up into her position”, she was adamant that it would not have occurred in the way described by the applicant. This was because the patient would have required support on each side of her, especially as it was her right side which had received the new hip. Ms Wendland gave this evidence: “I can only tell you how I usually [practise] and that would be that the patient would have been assisted to sit on to the bed. We would have helped her by either of us on each side to move up to where she needed to be. One of us would have grabbed her legs. One of us would have grabbed the top. We would have twisted the patient around on to the bed and then one of us would have gone on to the other side to help lift the patient on to the bed to support that operated leg”. Ms Wendland explained that, in the interests of the patient, it would be necessary for a nurse to be on each side of her as she was moved up the bed. [129] The trial judge was unable to resolve that conflict in the evidence. There may or may not have been an exercise in moving the patient on the bed as the applicant described. That uncertainty would make it yet more difficult to conclude that whatever was done by the applicant at that point could have been the cause of her injury. -- 32 of 34 -- 33 [130] In my view there was no evidence which suggested that the applicant was injured only at this stage. Indeed the trial judge noted the absence of such evidence when discussing that part of the applicant’s case which alleged that she had received insufficient training and instruction from the respondent on the safe handling of patients. On this argument for the applicant, she should have been better trained and instructed in the practice of the so-called O’Shea No Lift System. His Honour discussed what he saw as the many difficulties with this part of the applicant’s case at paragraphs [58] through [70] of his judgment. They included the following:132 “This aspect of the plaintiff’s case also confronts the plaintiff’s evidence that there was no realistic option but to act as she said she had, in the circumstances. Further, the only aspect of that course of action, which could be said to unequivocally have been non-compliant with the ‘no- lift policy’ were the actions in lifting the patient in order to reposition her in the bed. Accordingly, a further obstacle to this aspect of the case, is the absence of evidence that would enable a finding that it was this aspect of the plaintiff’s actions which caused her injury.” (emphasis added). His Honour then added:133 “It was, as has already been noted, the plaintiff’s evidence that she had experienced pain when supporting the patient at the side of the bed and at an earlier stage of the incident. Although the plaintiff did not adduce any evidence as to the angles or forces thereby involved and Mr Ludcke expressed some surprise that the plaintiff would suggest twisting at that point as the source of her injury, rather than the lifting of the patient on the bed, it was, as [has] also been noted, commonly accepted by the orthopaedic specialists that this was an acceptable mechanism of the plaintiff’s injury.” (emphasis added). [131] Because, in my view, there was no evidence that it was the repositioning of the patient on the bed that caused the applicant’s injury, I am unable to accept that there was a real prospect that her injury was so caused and, indeed, that this was at least as probable a cause of her injury as her taking the weight of the patient when she was out of the bed. [132] On the findings of the primary judge with which I agree, the applicant was injured in her efforts to restore the patient to her bed. The relevant risk thereby eventuated and the respondent’s negligence caused the injury. Consequently, the applicant’s claim should have succeeded. 132 [2015] QDC 197, [70]. 133 Ibid. -- 33 of 34 -- 34 [133] The applicant challenged that part of the assessment of damages which related to the applicant’s lost earning capacity. At the trial the applicant sought an award upon the premise that, but for the injury, she would have worked until aged 70. The trial judge disagreed and assessed damages upon the basis that she would have worked until no later than the age of 66.5 years. She was aged 62 at the time of the injury so that her loss could have been no more than 4.5 years of earnings. His Honour concluded also that there should be some discount applied for the chance that her retirement would have been earlier than at 66.5 years, particularly because of some other event causing her back condition to become symptomatic. He concluded a discount of one third was appropriate. He assessed the loss by using a weekly loss of $725 multiplied by 150 weeks, resulting in an amount of $108,750. From this he deducted an amount of $7,000 which was an approximation of wages which the applicant did earn in late 2007/early 2008. [134] At the trial the applicant argued that an amount of $730 per week should be used to calculate this component of her award. That was said to be an estimate of her earnings at the date of the injury. It was argued that as wages had risen from 2007 until the trial, a calculation of her loss to a retirement age of 70, using an amount of $730 per week, effectively allowed a substantial discount for possible events which could have shortened her working life. The respondent submitted to the trial judge that her 2007 earnings approximated $689 per week. Even so, the applicant argues, the use of $725 per week resulted in a substantial discount because an allowance could have been made for a yearly increase in earnings of at least 1.25 per cent. [135] In any event, the applicant argues, the discount of one third was far too high by overstating the probability of other things affecting her working life. [136] When injured, the applicant had been a nurse for nearly 40 years and had worked at this hospital for nearly 30 years. She was not a wealthy woman and there was no reason to suppose that she would not have wished to continue her long professional career for as long as she was able to do so. However she was not in perfect health. She suffered from insulin dependent diabetes and asthma. And there was the condition of her back, which made her especially prone to an injury of the kind which she did suffer here. The likelihood of that injury was well described in the medical opinion which was set out in the primary judgment. In these circumstances, it was open to the trial judge to assess this component of her claim as he did. [137] The arguments for the applicant would have substance as arguments to a trial judge. But in this court they do not reveal a basis for interfering with what is a discretionary judgment. I would not displace the trial judge’s assessment in the judgment which I would give to the applicant. -- 34 of 34 --