Recent case law.
A recent case highlights the need to ensure that trainees are provided with adequate training in occupational health and safety issues.
Whilst DLA Phillips Fox recently acted in the New South Wales Court of Appeal case of Smith v Sydney West Area Health Service [2008] NSWCA 267 (and acts for hospitals in other similar cases), this article is based solely upon the reported judgment.
Ms. Smith, a nurse employed at Nepean Hospital (with 30 years of experience as a nurse), was injured when she performed a two-person transfer of an elderly patient. Ms. Smith described the patient as being 84 years of age, five feet ten, weighed about 90 kilos and frail. She assisted the wardsman to lift the patient from the shower chair. Each took hold of an arm and pulled him to a standing position. He was then weight bearing and the nurse was holding onto him.
The wardsman who was assisting Ms. Smith let go of the elderly patient and moved the chair away leaving Ms. Smith holding the patient. The patient then started to fall, pulling Ms. Smith forward. Ms. Smith explained that whilst she tried to prevent the man from falling, she twisted and felt a pain in her back.
The wardsman was found guilty of negligence in letting go of the patient, either at all, or at least without first informing Ms. Smith that he was proposing to do so. In reaching this conclusion, the Court said that the question essentially revolved around whether a risk of injury was reasonably forseeable, in the sense that it was not far-fetched or fanciful. The precise risk need not be reasonably foreseen. It is sufficient for the accident to have been of a class that might well be anticipated as one of the reasonable and probable results of the wardsman's act.
On the facts, the Court found that the risk of injury was reasonably foreseeable. The patient had difficulties with mobility and was frail. His physical condition was such that he needed assistance to come to a standing position from being seated in the shower chair. He was also a relatively large man. There was a risk that if the wardsman moved away from the patient, at least without informing Ms. Smith he was about to do so, the patient might become unsteady and lose his balance. The consequence of this meant that Ms. Smith was the sole person managing the patient on her own, a task usually managed by two people. Ms. Smith was not able to take precautionary measures such as repositioning herself in an appropriate way so as to safely support the patient.
The Court concluded that the risk of injury to Ms. Smith was reasonably foreseeable and held the hospital vicariously liable for its employed wardsman.
Manual handling occurs across hospitals every day and manual handling injuries are one of the most common injuries experienced in hospitals. This case is a reminder that hospital operators and healthcare professionals should not become complacent and must provide basic training to new employees.
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