Facts

The Plaintiff was employed by Queensland Rehabilitation Services (the “Defendant”), as an Assistant in Nursing at the Carindale Brook Innovative Care Centre. The Plaintiff commenced employment with the Defendant in June 2008. The Plaintiff’s claim was premised on the allegation that in February 2009, in the course of her employment, she experienced the following symptoms to the Defendant’s knowledge: pain in the neck, left scapula and left arm. Subsequent to this, the Plaintiff alleged she was required to resume her normal pre-injury duties, although a reasonable employer should have been aware that she should not have been asked to do so.

On 27 July 2009, some months following the Plaintiff’s return to work, she alleged she was unreasonably required to manoeuvre a resident with dementia, who was known to forcefully resist attempts to move him by grasping objects and occasionally striking out violently. In doing so, she felt a sharp pain in her neck and shoulder. The Plaintiff stated she proceeded to lift the patient using a hoist. Whilst the patient was suspended in the sling, she was required to manually manoeuvre him by grasping the sling behind the patient’s back with both hands to vertically and horizontally align the patient with the shower chair before he could be lowered onto it. The Plaintiff alleged whilst manoeuvring the patient in the sling she experienced further pain in her neck, left scapula, left shoulder and left arm.

Arguments at Trial

The Plaintiff submitted the following main points in issue at Trial:

  1. The Defendant should have been aware of the Plaintiff’s special vulnerability upon her return from having three days off in February 2009.
  2. The Plaintiff was not provided with training specific in dealing with transferring dementia patients.
  3. The Defendant should have provided a third person to assist in the transfer of the patient.

The Defendant argued in response:

  1. The assertion that the Defendant knew that the Plaintiff had a problem with her cervical spine (arising from the matters occurring in February 2009) should be rejected as all that happened was the Plaintiff obtained a certificate from a general practitioner for “a medical condition”. Even taking the Plaintiff’s evidence at its highest, there was no evidence that the Defendant ought to have taken any further steps once the Plaintiff returned to work with a medical clearance. The Plaintiff by her own admission returned to work without any further symptoms until the incident in July.
  2. With respect to training, the Plaintiff accepted that she was instructed that if a patient resisted during a transfer, she should simply leave the patient alone.
  3. With respect to the requirement that the Defendant ought to have a third co-worker to assist transferring a patent with dementia, no expert evidence was called to show that the transfer, as it occurred, was unreasonable. Also the suggestion that someone should have been holding the residents’ hands was not reasonable where the resident was alleged to be a person who was “grabbing” at staff.

Findings

Phillippides J stated in relation to the special vulnerability claim there was nothing in those circumstances which did or should have alerted the Defendant to the Plaintiff having a special vulnerability to spinal injury. The Plaintiff simply reported an isolated occasion of having a sore neck and she was fit to return to work after a few days off. The Plaintiff by her own evidence stated that she experienced a slight ache in her neck and accepted under cross examination that she did not experience pain in her left arm in February 2009. The Plaintiff was unable to be clear as to whether she had also experienced shoulder pain.

Phillippides J stated the difficulty with the Plaintiff’s case was that there was no evidence that it was unreasonable for the Defendant to require the Plaintiff to engage in the transfer procedure in the circumstances that pertained. Phillippides J stated the Plaintiff’s evidence as to how her injury was sustained lacked clarity and at times was inconsistent with the pleaded case.

In regard to the Plaintiff’s alleged various breaches of duty of care, namely lack of adequate training, supervision and assistance, Phillippides J stated the following:

  1. There was no evidence produced by the Plaintiff on what particular additional instruction or training ought to have been given that was not given, or in what respect the instruction and training given was deficient, or how such instruction would have prevented the injury.
  2. It was not apparent at all that there were any safety issues arising in relation to the complaint made of the Plaintiff’s work, which resulted in a disciplinary meeting, to warrant further supervision of her work.
  3. No evidence was called to show that it was unreasonable to effect a transfer, as occurred, with two people who were trained for the task. Further it was not evident that the postulated system would not have involved placing a third co-worker at risk. The cost implications of having a third person present were not the subject of evidence either.

Conclusion and Implications

What stems from this decision is that although it is one thing for a Plaintiff to allege various and general breaches of duty of care against the Defendant, if no evidence is produced or witnesses called at Trial to support the allegations made, it will not be enough to satisfy the Court of a finding of liability.

To access the judgement click here.