Downes v Affinity Health Pty Ltd

Holmes CJ and Morrison and Philip McMurdo JJA

13 May 2016

This application for leave to appeal was brought by a registered nurse who contended that the respondent was in breach of its duty to her when she aggravated a spinal condition whilst lifting a post-operative patient into bed, by failing to provide full length cot rails. [4].

The salient issues were whether:

(a)an appeal was necessary to correct a substantial injustice; and

(b)there was a reasonable argument that there was an error to be corrected. [7].

The applicant submitted that at first instance, the primary judge erred by:

(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. [10].

The Hospital sought to affirm the decision on the basis that there should have been a finding of no breach of duty in respect of the heightened vigilance ground. [11].

At the outset the court noted that the applicant had provided a number of contrary versions of events in her evidence. [15]–[17]. In addition, another witness gave evidence which conflicted with the applicant’s regarding how the incident occurred. [18]. The learned trial judge accepted that each witness was honest, but unreliable as to the circumstances in which the incident occurred, [20] impeding his ability to form a conclusion as to the physical actions that were involved in the applicant’s interaction with the patient. [26]. Ultimately he was unable to make a finding as to whether the applicant sustained her injury in the way she alleged. [33].

Breach of the duty of care

At issue on appeal was what, in all the circumstances of the case, was the content of the duty of care; and whether the evidence established that there had been a breach of that duty. [40] In examining this, the court referred to Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42 at [18] and the two-step process in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47–48 per Mason J.  In analysing whether the provision of a full rail bed would have avoided the risk to the applicant, the court noted that the essential inquiry is directed to whether the omitted step would have avoided the incident: see Wolters v The University of the Sunshine Coast [2014] 1 Qd R 571, at [40]–[42]. [78].

The court held that the learned trial judge’s inquiry “strayed from the proper frame of reference” in that he referred to a bed with full length cot rails 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. In the court’s view, neither scenario focussed on the incident alleged, that is that the patient got out of bed via the gap between the end of the rails and the end of the bed. [79]. The court noted that the evidence supported the conclusion that had a bed with full length cot rails been provided, then the incident would likely have been prevented and the risk obviated. [80].

Need for heightened vigilance

The court found the Hospital’s Notice of Contention, in which it sought to affirm the decision on the basis that there should have been a finding of no breach of duty in respect of the heightened vigilance ground, lacked merit. [86]. In delivering the lead judgment, his Honour Justice Morrison commented:

“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”. [85].

Causation generally

The court noted that there was a delay of 21 months between the trial and judgment at first instance. [106]. With reference to the requirements in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [69]–[72], it nonetheless accepted 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 as sound [106] (and thus consequently the finding that he could not be satisfied that there was a causal link between the negligence and the injury suffered by Ms Downes). [87].

His Honour Justice Morrison observed:

“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. Those findings underpin the learned trial judge’s rejection of a causal link between the negligence and the injury”.  [103].

Causation in respect of the heightened vigilance breach

The applicant submitted that the instructions or information that should have been given would have enabled her to “proactively address, in a more timely way, attempted movement” by the patient, and that “seconds mattered”. [108]. However, the weight of the evidence at trial resulted in the trial judge concluding that if the need for heightened vigilance had been brought to the applicant’s attention she would not have done anything materially different. [111]. Upon reviewing the evidence and findings, the court concurred, stating that the finding was “amply justified”. [113].

Ultimate finding on causation

Given the proposed grounds of appeal were without merit, the court upheld the finding that “it has not been established, on the balance of probabilities, that any … breach of duty, was causative of any injury to [Ms Downes]”. [114].

In the result, by majority the application for leave to appeal was refused and the Notice of Contention dismissed [117] (His Honour Justice Philip McMurdo dissenting). [118]–[137].

R M Derrington QC

Editor: Queensland Reports